LITTLE,  BROWN  &  CO.'S 

LAW    ADVERTISER 

112   WASHINGTON    STREET,   BOSTON. 

JANUARY,    1855. 


ENGLISH 

LAW  AND  EQUITY  REPORTS. 

EDITED  BY  EDMUND  H.  BENNETT  AND  CHAUNCEY  SMITH,  ESQRS. 
Reduction  of  Number  of  Volumes  to  Four  Annually. 

IN  consequence  of  the  great  increase  of  Chancery  Cases  in  England, 
this  series  of  Reports  will  not  hereafter  contain  ALL  the  Chancery 
Cases,  but  such  only  as  are  of  practical  importance  to  the  American 
profession. 

ALL  THE  COMMON  LAW,  CRIMINAL,  AND  ADMIRALTY  CASES 
WILL  STILL  BE  PUBLISHED,  COMPLETE  AND  UNABRIDGED,  AS  HERE- 
TOFORE. 

By  this  change,  the  number  of  annual  volumes  will  be  reduced 
from  six  to  FOUR,  (three  of  Law  and  one  of  Chancery)  ;  and  more 
legal  matter  will  be  furnished  to  the  profession,  and  in  fewer  volumes, 
than  in  any  other  series  of  Reports.  Additional  pains  will  be  used 
to  bring  out  the  Cases  in  advance  of  all  others. 

These  Reports  are  now  regularly  digested  in  our  Annual  United 
States  Digest,  which  thus  embraces  an  Annual  Digest  of  the  whole 
English  and  American  Law. 

For  the  greater  convenience  of  the  profession,  we  shall  hereafter 
publish  a  table  of  all  the  cases  in  these  Reports,  with  a  reference  to 
the  volume  and  page  of  every  other  series  where  the  same  case  may 
be  found. 

Vols.  I.  to  XXIV.  now  ready  for  delivery,  at  $2.00  per  volume, 
to  permanent  subscribers. 

Volume  XXV.,  containing  Cases  in  all  the  Common-Law  Courts, 
down  to  the  close  of  the  year  1854,  is  now  in  press,  and  will  be 
issued  early  in  1855.  It  will  be  the  most  valuable  volume  yet  published. 

"  We  have  spoken  in  general  terms  of  these  Law  and  Equity  Reports  so  fully  on 
former  occasions,  that  we  have  little  to  add  now.  Their  value  is  becoming  widely  ap- 
preciated by  the  members  of  the  legal  profession  everywhere,  and  their  success  is 
beyond  peradventure.  They  are,  probably,  the  cheapest  series  of  Reports  in  the  world, 
and  are  the  most  useful  to  every  American  lawver  next  to  the  Reports  of  the  decision! 
of  the  CourU  of  his  own  State.1'  —  N.  Y.  Com.  "Advertiser. 


'  This  is  one  of  the  cheapest,  and  decidedly  the  best,  of  all  the  republications  of 
English  Reports  in  this  country.  At  the  close  of  each  year,  the  subscriber  to  these 
volumes  is  placed  in  possession  of  a  faithful  and  accurate  report  of  every  important 
case  which  has  been  decided  in  the  English  Courts  during  the  preceding  year."  — 
Richmond  Examiner. 


on  ^Limitations. 

A  TREATISE  ON  THE  LIMITATIONS  of  Actions  at  Law 
and  Suits  in  Equity  and  Admiralty,  with  an  Appendix  containing 
the  American  and  English  Statutes  of  Limitations,  and  embracing 
the  latest  Acts  on  the  subject.  By  JOSEPH  K.  ANGELL,  Esq. 
Third  Edition,  revised  and  greatly  enlarged.  By  JOHN  WILDER 
MAY,  Esq.  1  vol.  8vo.  $5.00. 

"  This  Treatise  of  Mr.  AngelPs  on  legal  limitations  has  long  been  most  favor- 
ably known  both  to  the  profession  and  the  public.  It  passed  to  a  second  edition 
in  1846,  and  we  have  seen  a  private  letter  from  Lord  Brougham,  at  that  time  Lord 

f~*Vionrtoll/\Y»  f\f  T7««YlaTl/l      in    Txrnir»Vl    VlIC    T.nr/lel-iir*   o-wifoccna    t\\a  r*r\i»ii/\Yi    4-tiof     '  if  ia    Kir 


has  been  used  in  the  United  States,  and  the  high  authority  which  it  has  attained, 
attest  the  estimation  in  which  it  is  here  held.  The  present  edition  has  been  pre- 
pared by  Mr.  J.  W.  May,  a  member  of  the  Boston  Bar,  whom  Mr.  Angell,  in  the 
pressure  of  his  other  engagements,  employed  for  the  purpose.  The  work  has 
been  greatly  enlarged,  and  its  references  to  cases  adjudged  brought  down  to  the 
present  time.  Mr.  May  has  added  upwards  of  seven  hundred  cases  to  the  seven- 
teen hundred  which  were  cited  in  the  second  edition,  and  has  also  inserted  many 
valuable  notes,  making  the  volume,  as  the  author  remarks  in  his  preface,  about 
one  third  larger  than  before.  The  Appendix  also  contains  Statutes  of  Limitations 
which  have  been  passed  by  the  new  States  of  Florida,  Iowa,  Texas,  and  Califor- 
nia, and  the  volume  as  a  whole,  we  believe,  is  a  complete  summary  of  the  law  on 
this  subject,  as  it  now  exists  in  the  common  and  statute  laws  of  both  England 
and  the  United  States. 

"  The  fact  that  the  present  edition  has  been  prepared  by  another  hand  than  that 
of  the  author,  is  a  gratifying  proof  of  the  wide  demand  which  now  exists  for  the 
law  writings  of  Mr.  Angell.  So  well  adapted  to  the  requirements  of  the  public 
are  the  several  books  which  he  has  published,  that  they  now  pass  to  new  editions 
with  greater  rapidity  than  he  is  able  to  prepare  them,  and  it  is  this  fact  which 
has  compelled  him  to  employ  the  aid  of  another  in  reediting  the  work  on  Limita- 
tions." —  Providence  Journal. 


liatiuian  (Fasts. 

CASES  RELATING  TO  RAILWAYS  AND  CANALS,  argued 
and  adjudged  in  the  Courts  of  Law  and  Equity,  from  1835  to 
1852.  Edited  by  SAMUEL  W.  BATES  and  CHAUNCEY  SMITH, 
Esquires.  6  vols.  8vo.  $24.00. 


Dratic  on  attachment. 

A  TREATISE  ON  THE  LAW  OF  SUITS  BY  ATTACHMENT 

in  the  United  States.     By  CHARLES  D.  DRAKE,  Esq.,  of  St. 
Louis.     1  vol.     8vo.    $4.50. 

"  After  a  brief  historical  introduction,  Mr.  Drake  gives  an  abstract  of  the  lead- 
ing statutory  provisions  of  the  several  States  and  territories  of  the  United  States, 
in  relation  to  suits  by  attachment.  He  then  considers,  in  successive  chapters,  for 
what  cause  of  action  an  attachment  may  issue ;  the  method  of  proceeding  against 
absent,  absconding,  concealed,  and  non-resident  debtors,  and  debtors  removing  or 
fraudulently  disposing  of  their  property;  the  liability  of  corporations  and  repre- 
sentative persons  to  be  sued  by  attachment;  the  requisites  of  the  affidavits,  bonds, 
&c.  He  also  discusses  very  elaborately  the  process  of  garnishment,  and  the  lia- 
bility of  garnishees,  under  all  their  various  relations  to  defendants.  The  last  two 
chapters  are  devoted  to  the  consideration  of  fraudulent  attachments,  and  actions 
for  malicious  attachment.  The  whole  work  constitutes  a  large  octavo  volume  of 
nearly  six  hundred  pages,  with  a  full  table  of  cases  and  a  thorough  index.  No 
law-book  that  has  recently  been  given  to  the  profession  will  be  more  generally 
useful.  Mr.  Drake  has  produced  a  treatise  which  has  long  been  needed.  It  is 
clear  and  copious,  and  embodies  all  the  American  and  English  authorities  perti- 
nent to  the  theme."  —  N.'  Y.  Com.  Advertiser. 

"  The  first  attempt,  we  believe,  and  apparently  a  very  successful  one,  to  reduce 
to  system  the  attachment  laws  of  the  different  States.  The  volume  contains,  first, 
a  full  and  careful  statement  of  the  statute  laws  relative  to  attachment,  which  are 
now  in  force  in  the  various  States  of  the  Union ;  and,  second,  a  compend  ol  prac- 
tice under  those  statutes — regard  being  had  to  their  differences.  Inasmuch  as 
attachments  are  necessarily  conducted  in  haste,  —  being  ordinarily  a  sort  of  scrub 
race  between  a  debtor  and  half-a-dozen  creditors,  —  and  inasmuch,  also,  as  spe- 
cial accuracy  is  required  in  all  statutory  proceedings  of  that  character,  we  should 
think  this  work  might  be  of  great  service  to  the  profession."  — N.  Y.  Times. 

"  The  work  appears  to  be  methodically,  perspicuously,  and  adequately  pre- 
pared." —  Richmond  Examiner. 

"  The  Missouri  bar  has  been  and  is  illustrated  by  several  names  of  deserved  dis- 
tinction, but  this  we  believe  is  the  first  treatise  on  any  department  of  the  law 
which  it  has  produced.  The  subject  which  Mr.  Drake  has  chosen  is  one  almost 
purely  American.  The  law  of  attachment  has  been  developed  more  exclusively 
in  the  United  States  than  is  generally  supposed.  The  bankrupt  law  and  the  pro- 
cess against  the  body  in  England  rendered  the  process  by  attachment  there  com- 
paratively superfluous,  and  hence  cases  of  that  kind  are  rarely  to  be  found  in  the 
English  books.  Of  the  twelve  hundred  cases  cited  by  Mr.  Drake  —  and  he  has 
surveyed  the  whole  subject — only  eleven  are  English,  the  remainder  being  derived 
from  the  Reports  of  our  federal  courts,  and  of  twenty-eight  of  the  thirty-one  States. 

"The  first  sixty-seven  pages  of  the  work  are  devoted  to  an  analysis  of  the  lead- 
ing statutory  provisions  of  the  several  States  and  territories  of  the  United  States 
in  relation  to  attachments,  and  the  remaining  five  hundred  to  the  practice ;  and 
without  attempting  to  set  forth  the  merits  of  its  arrangement  and  execution  in 
detail,  we  may  say,  in  general,  that  Mr.  Drake's  work  supplies  a  place  in  the 
lawyer's  library  which  has  never  before  been  filled. 

"  Mr.  Drake's  faculty  of  stating  legal  propositions  is  unusually  clear  and  logi- 
cal, and  his  style  possesses  far  higlier  merit  than  belongs  to  the  great  majority  of 
law  books  now  publishing,  either  in  this  country  or  in  England."  —  N.  Y.  Evening 
Post. 

"  We  are  prepossessed  in  favor  of  Mr.  Drake  by  the  sensible  tone  of  his  preface. 
The  subject  is  one  of  no  little  interest  to  those  two  classes  of  the  community,  in 
both  of  which  most  men  find  themselves  at  some  time  or  other  during  their  lives 
—  debtors  and  creditors  —  and  we  are  glad  to  see  it  undertaken  by  a  professional 
writer,  who  can  give  us  something  better  than  a  catch-penny  manual.  The  vol- 
ume contains  a  good  deal  of  information,  and  we  should  think  would  be  useful. 
Such  books  are  a  step  towards  the  desirable  object  of  a  fusing  of  the  laws  and 
jurisprudence  of  the  various  jurisdictions  of  our  Union  into  one  harmonious 
whole,  which,  if  it  could  be  accomplished,  would  tend  most  effectually  to 
strengthen  and  perpetuate  our  connection  with  each  other."  —  Boston  Atlas. 


American  liatltoarj 

CASES  RELATING  TO  THE  LAW  OF  RAILWAYS,  de- 
cided in  the  Supreme  Court  of  the  United  States,  and  in  the 
Courts  of  the  several  States,  with  Notes.  By  CHAUNCEY  SMITH 
and  SAMUEL  W.  BATES,  Esqrs.,  Counsellors  at  Law.  Vol.  I. 
8vo.  $4.50. 

"  Considering  the  number  and  extent  of  railroads  in  this  country,  the  multitude 
of  persons  who  are  directly  or  indirectly  interested  in  them,  and  the  variety  of 
legal  questions  arising  out  of  their  management  which  have  been  adjudicated  by 
the  State  and  federal  courts,  it  is  surprising  that  the  collection  of  American  rail- 
way cases  has  been  so  long  delayed.  The  several  hundred  volumes  of  American 
Reports  are  beyond  the  reach  of  all  except  very  few  of  the  thousands  of  persons  to 
whom  it  is  important  to  be  well  informed  of  the  various  judicial  decisions  upon 
the  law  affecting  railroads ;  and  hence  this  compilation  by  Messrs.  Smith  and 
Bates  may  be  truly  pronounced  a  public  benefaction. 

"  Every  practising  lawyer  who  does  not  possess  a  full  library  of  American  Re- 
ports,  must  need  a  copy  of  this  work,  and  even  he  who  is  so  fortunate  as  to  own 
a  complete  set  of  the  Reports  will  find  this  collection  exceedingly  useful  and  con- 
venient. As  for  the  numerous  presidents,  directors,  secretaries,  superintendents, 
and  other  officers  of  railroad  companies  throughout  the  United  States,  this  work 
is  to  them  a  positive  boon.  They  will  derive  incalculable  benefit  from  the  study  of, 
and  frequent  reference  to,  the  collected  cases.  Stockholders  in  railroad  compa- 
nies are  also  often  called  upon  to  vote  on  questions  which  require  considerable 
knowledge  of  the  law  to  decide  intelligently.  It  is  very  probable  that  studv  of  the 
collected  cases  will  prevent  much  costly  and  vexatious  litigation."  —  N.  T.  Com- 
mercial Advertiser. 

"  The  decisions  of  the  United  States.  Supreme  Court  occupy  130  pages,  of 
Maine  64,  New  Hampshire  23,  Vermont  46,  and  Massachusetts  350,  or  considera- 
bly more  than  half  the  volume.  The  volume  concludes  with  an  elaborate  index, 
and  is  interspersed  with  occasional  notes  by  the  editors,  which  add  to  its  value 
for  professional  purposes.  When  complete,  this  will  form  the  most  thoroughly 
original  and  American  body  of  law  in  the  whole  range  of  the  Reports."  —  N.  Y. 
Evening  Post. 

"  The  importance  and  great  value  of  this  collection  of  Railway  Cases,  embracing 
every  decision  of  the  Supreme  Court  of  the  United  States  and  of  the  State  courts, 
will  no  doubt  be  obvious  to  the  profession  in  this  State.  The'introduction  of  rail- 
ways has  given  rise  already,  in  our  courts,  to  much  litigation  upon  questions 
peculiar  to  that  species  of  property,  or  involving  novel  applications  of  the  princi- 
ples of  the  common  law.  In  England,  the  extraordinary  increase  of  this  kind  of 
litigation  long  since  rendered  the  publication  of  all  the  railroad  cases  in  a  sepa- 
rate series  of  volumes  from  those  containing  decisions  upon  other  questions  of 
law  necessary  for  the  convenience  of  the  prolession. 

"  The  extension  and  rapid  multiplication  of  railroads  in  all  parts  of  the  country 
makes  it  equally  important  that  the  railroad  cases  scattered  through  five  hundred 
volumes  of  American  reports,  should  be  collected  and  published  by  themselves. 
This  great  desideratum  has  been  well  supplied  by  Messrs.  Little  &  Brown.  The 
notes  of  Messrs.  Smith  and  Bates  are  also  of  considerable  value."  — Richmond 
Examiner. 


States  Annual 

DIGEST  OF  DECISIONS  of  the  Courts  of  Common  Law, 
Equity,  and  Admiralty,  in  all  the  Courts  of  the  United  States, 
and  of  the  several  States,  for  the  year  1853.  By  JOHN  PHELPS 
PUTNAM,  Esq.  8vo.  $5.00. 

"  It  seems  sufficient  to  merely  mention  the  publication  of  this  volume.  The 
plan  of  the  work  and  its  value  are  as  well  known  to  every  intelligent  American 
lawyer  as  Coke  j  on  Littleton,  or  Blackstone's^  Commentaries.  The  whole 


thirteen  volumes,  t.  e.,  the  five  original  volumes  of  the  Digest,  the  volume 
containing  Mr.  G.  P.  Sanger's  Table  of  Cases,  and  the  seven  volumes  of 
Putnam's  Annual  Digest,  all  bearing  the  title  of  the  "  United  States  Di- 
gest," contain  the  substance  of  nearly  one  thousand  volumes  of  American 
Reports  —  the  possession  of  which  is  far  beyond  the  means  of  any  but  the  rich. 
Vol.  VII.,  which  is  now  before  us,  contains  a  digest  of  two  volumes  of  United 
States'  Reports,  forty-three  volumes  of  State  Reports,  and  six  volumes  of  English 
Reports:  in  all,  ffty-one  volumes  of  Reports  for  one  year.  If  the  decisions  of  our 
American  Courts  accumulate  at  this  rate,  tne  members  of  the  bar  must,  nolens 
nolens,  rely  upon  the  Digests  for  authorities,  only  resorting  to  the  public  libraries 
to  examine  tne  Reports  at  large  when  some  point  is  not  stated  t>y  the  digester 
with  adequate  clearness  and  precision.  Not  one  lawyer  in  a  thousand  can  afford 
to  have  five  thousand  dollars'  worth  of  Reports  on  his  book-shelves ;  but  there  are 
few  who  cannot  acquire  the  thirteen  volumes  of  the  United  States  Digest  at  $78. 
It  is  so  conveniently  arranged  for  reference  that  it  may  justly  be  called  a  labor- 
saving  as  well  as  a  money-saving  work."  —  N.  Y.  Com.  Advertiser. 


s  patent 

A  COLLECTION  OF  PATENT  CASES  decided  in  the  Supreme 
and  Circuit  Courts  of  the  United  States,  from  their  organization 
to  the  year  1850,  with  Notes,  Index,  &c.  By  JAMES  B.  ROBB, 
Esq.  2  vols.  8vo.  $10.00. 

"  These  two  volumes  unquestionably  present  the  most  complete  exposition  of 
the  Patent  Law  of  the  United  States  that  is  now  in  print.  They  contain  all  the 
reported  decisions  of  the  Circuit  and  Supreme  Courts  of  the  United  States  prior 
to  1850.  The  cases,  numbering  just  124,  and  selected  from  some  sixty  volumes 
of  Reports,  are  arranged  very  nearly  in  chronological  order,  and  embrace  all  the 
decisions  illustrating  the  principles  of  the  patent  law  which  had  been  made  in 
this  country  up  to  1850."  —  N.  Y.  Evening  Post. 

"  These  volumes  afford  unquestionably  the  most  luminous  exposition  of  the 
Patent  Laws,  in  their  increasing  application  to  the  ever-varying  mechanical  de- 
velopments of  the  age,  in  their  progress  from  obvious  and  defined  discoveries,  to 
the  mere  intangible  distinctions  which  characterize  many  of  the  cases  thus  re- 
ported. In  addition  to  these,  all  the  statutes  relating  to  patents  are  appended  to 
the  work,  and  wherever  the  decisions  upon  earlier  ones  are  modified  by  subse- 
quent legislation,  the  fact  is  carefully  noted  by  the  editor.  The  whole  of  the  now 
widely  extended  science  of  mechanical  jurisprudence  is  thus  concentrated  into  a 
compact  and  lucid  publication,  which  will  no  doubt  be  received  with  great  favor 
by  the  profession  at  large."  —  Trenton  Gazette. 


on  tlje  liomau 

AN  INTRODUCTION  TO  THE  STUDY  OF  THE  ROMAN 
LAW.  By  Hon.  LUTHER  S.  GUSHING.  In  one  volume.  8vo. 
Cloth,  $1.25. 

"  This  is  a  modest  and  unpretending,  but  most  interesting  and  useful  volume. 
It  supplies  a  want  which  has  long  existed.  In  a  plain,  perspicuous  and  intelli- 
gible manner,  it  furnishes  an  introduction  to  the  study  of  the  Roman  law;  so 
clear  and  attractive  that  the  student  wishes  to  learn  more,  and  has  the  path  made 
straight  before  him ;  and  yet  so  full  that  if  the  reader  onlv  masters  thoroughly 
the  contents  of  the  volume,  he  will  have  a  general  knowledge  and  idea  of  the 
the  Roman  law,  its  administration,  literature,  and  history.  Even  beyond  this, 
the  work  is  valuable  as  a  glossary  of  many  of  the  terms  of  the  civil  and  Roman 
law  in  common  use ;  for  its  very  full  chapter  upon  the  mode  of  referring  to  or 
citing  the  books  of  the  Roman  law ;  and  for  its  appendix,  containing  a  table  of  the 
subjects  of  the  several  titles  of  the  Institutes,  Digest,  and  Code,  arranged  in  alpha- 
betical order. 


"The  chapters  on  the  history  of  Roman  legislation  and  jurisprudence  are  pre- 
pared with  special  care.  Enough  is  given  to  explain  and  interest,  but  not  so 
much  as  to  weary.  We  think  that  the  publication  of  this  volume  will  do  much 
to  instruct  the  profession  in  the  history,  principles,  and  literature  of  the  Roman 
law ;  to  be  entirely  conversant  with  which  is  an  accomplishment  which  few  law- 
yers, in  those  States  where  the  common  law  prevails,  can  be  expected  to  attain, 
but  to  be  entirely  unacquainted  with  which,  now  that  this  volume  is  published, 
is  to  be  disgracefully  ignorant."  — Law  Reporter. 


Jiafeis's  Justice, 

A  PRACTICAL  TREATISE  upon  the  Authority  and  Duty  of  Jus- 
tices of  the  Peace,  in  Criminal  Prosecutions.  By  DANIEL  DAVIS, 
Solicitor-  General  of  Massachusetts.  Third  Edition.  Revised 
and  greatly  enlarged.  Edited  by  F.  F.  HEARD,  Esq.  1  vol. 
8vo.  $4.00. 


on  jFtte  antt  Hife  Insurance. 

A  TREATISE  on  the  Law  of  Fire  and  Life  Insurance.  With  an 
Appendix,  containing  Forms,  Tables,  &c.  By  JOSEPH  K.  AN- 
GELL,  Esq.  1  vol.  8vo.  $5.00. 


Beports. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Court  of  the  United  States.  By  BENJAMIN  C.  HOWARD.  Vol. 
XVI.  8vo.  $5.50. 


REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  Hon.  LUTHER  S.  GUSHING. 
Vol.  VIII.  8vo.  $5.00. 


on  Contracts, 

A  TREATISE  on  the  Law  of  Contracts.  By  Hon.  THEOPHILUS 
PARSONS,  Professor  in  Dane  Law  College,  Cambridge,  Mass. 
Vol.  I.  8vo.  $5.50. 


on  Insurance, 

A  TREATISE  ON  THE  LAW  OF  INSURANCE.  By  Hon. 
WILLARD  PHILLIPS.  Fourth  Edition,  enlarged.  2  vols.  8vo. 
$10.00. 


IH 

AND    PREPARING   FOR   PUBLICATION. 


PARSONS   ON   COMMERCIAL    LAW. 

THE  PRINCIPLES  OF  COMMERCIAL  LAW.  By  Hon. 
THEOPHILUS  PARSONS,  LL.  D.,  Dane  Professor  in  the  Law 
School  of  Harvard  University,  in  Cambridge.  2  vols.  8vo. 

The  principal  topics  of  the  first  volume  will  be  the  Origin  and  History 
of  the  Law  Merchant ;  the  Law  of  Partnership ;  of  Sales ;  of  Agency ; 
of  Bills  and  Notes ;  and  of  Marine  Insurance.  The  second  volume  will 
contain  the  Law  of  Shipping,  and  the  Law  and  Practice  of  Admiralty. 

BISHOP    ON   CRIMINAL    LAW. 

COMMENTARIES  ON  CRIMINAL  LAW.  By  JOEL  PREN- 
TISS  BISHOP,  Esq.,  Author  of  Commentaries  on  the  Law  of  Mar- 
riage and  Divorce.  The  first  volume  to  be  a  complete  elementary 
Treatise  of  itself. 

This  work  is  intended  to  embrace  the  entire  field  of  English  and 
American  Criminal  Jurisprudence,  traversed  by  new  paths.  It  will  be 
both  elementary  and  practical,  adapted  alike  to  the  use  of  the  student, 
the  magistrate,  and  the  practising  lawyer;  and,  on  important  points, 
will  contain  citations  of  all  the  English  and  American  cases. 

AMERICAN    RAILROAD   CASES. 

A  COMPLETE  COLLECTION  OF  THE  AMERICAN  CASES 
relating  to  the  Rights,  Duties,  and  Liabilities  of  Railroads,  with 
notes  and  references  to.  the  English  and  American  Railway, 
Canal,  and  Turnpike  Cases.  By  CHAUNCEY  SMITH  and  S.  W. 
BATES,  Esquires.  2  .vols.  8vo.  Vol.  I.  now  ready. 

PARSONS  ON  CONTRACTS. 

A  TREATISE  ON  THE  LAW  OF  CONTRACTS.  By  Hon. 
THEOPHILUS  PARSONS,  Professor  in  Dane  Law  College,  Cam- 
bridge, Mass.  In  2  vols.  8vo.  Vol.  I.  now  ready. 

THE  LAW  OF  ADMIRALTY. 

LEADING  CASES  IN  ADMIRALTY  AND  SHIPPING,  with 
Notes  and  Commentaries.  By  a  Member  of  the  Suffolk  Bar. 
In  one  volume.  8vo. 

BLACKBURN  ON  THE  CONTRACT  OF  SALE. 

A  TREATISE  ON  THE  LAW  OF  SALES.  By  C.  BLACK- 
BURN. With  Additions,  Notes,  and  References.  By  WILLIAM 
P.  WELLS,  Esq.  1  vol.  8vo. 


8 

• » 

FRAUDS. 

A  TREATISE  ON  FRAUDS.  By  CAUSTEN  BROWNE,  Esq.,  of 
the  Suffolk  Bar.  In  one  volume.  8vo. 

ARBITRATION. 

ARBITRATION  at  Common  Law,  in  Equity,  and  under  the  Sta- 
tutes of  the  States  of  the  United  States.  By  EDWARD  G. 
LORING,  Esq.,  of  the  Suffolk  Bar. 

VENDORS  AND  PURCHASERS. 

THE  LAW  OF  VENDORS  AND  PURCHASERS  OF  REAL 
PROPERTY.  By  FRANCIS  HILLIARD,  Esq.  2  vols.  8vo. 

HUSBAND  AND  WIFE. 

THE  PRINCIPLE  AND  RULES  OF  LAW  regulating  the 
Property  of  Husband  and  Wife ;  and  Civil  Actions  therefor. 
By  EDWARD  G.  LORING,  Esq. 

WHEATON'S  INTERNATIONAL  LAW. 

ELEMENTS  OF  INTERNATIONAL  -LAW.  By  the  late  Hon. 
HENRY  WHEATON,  LL.  D.  Fourth  Edition,  revised,  annotated, 
and  brought  down  to  the  present  time,  with  a  Biographical  Notice 
of  Mr.  Wheaton,  and  an  Account  of  the  Diplomatic  Transactions 
in  which  he  was  concerned.  By  Hon.  WM.  BEACH  LAWRENCE, 
formerly  Charge  d' Affaires  at  London.  In  one  volume.  8vo. 

PRECEDENTS  OF  INDICTMENTS. 

PRECEDENTS  OF  INDICTMENTS,  Special  Pleas,  &c.,  adapt- 
ed to  American  Practice,  with  Notes  containing  the  Law  of 
Criminal  Pleading.  By  CHARLES  R.  TRAIN,  and  F.  F.  HEARD, 
Esquires,  of  the  Middlesex  Bar.  In  one  volume.  8vo. 

HIGHWAYS. 

A  TREATISE  ON  THE  LAW  OF  HIGHWAYS,  dedication 
of,  Travellers,  Travelling,  &c.  By  JOSEPH  K.  ANGELL,  Esq. 
In  one  volume.  8vo. 

ENGLISH  REPORTS. 

LAW  AND  EQUITY  REPORTS.  The  Common  Law,  Equity, 
Criminal,  Admiralty,  and  Ecclesiastical  Reports  combined.  Edited 
by  EDMUND  H.  BENNETT  and  CHAUNCEY  SMITH,  Esquires.  Vol. 
XXV. 

GRAY'S  REPORTS. 

REPORTS  OF  CASES  argued  and  determined  in  the  Supreme 
Judicial  Court  of  Massachusetts.  By  HORACE  GRAY,  Jr.  Vol. 
I.  8vo. 

CRIMINAL  LAW. 

A  COLLECTION  OF  LEADING  CASES  in  various  branches 
of  the  Criminal  Law,  with  Notes.  By  B.  F.  BUTLER  and  F.  F. 
HEARD,  Esquires.  In  two  vols.  8vo. 


TREATISE 


LAW  OF    CARRIERS 


OF 


GOODS  AND  PASSENGERS, 

BY 

LAND    AND    BY    WATER. 
BY  JOSEPH  K.  ANGELL. 

SECOND  EDITION. 
REVISED   AND   ENLARGED. 


BOSTON: 
CHARLES  C.  LITTLE  AND  JAMES  BROWN. 

M  DCCCLI. 


Entered  according  to  the  Act  of  Congress,  in  the  year  1851,  BY  JOSEPH  K.  ANGELL, 
in  the  Clerk's  Office  of  the  District  Court  of  Rhode  Island. 


CAMBRIDGE : 
PRINTED  BY  BOLLES  AND  HOUGHTON. 


ADVERTISEMENT 
TO   THE   SECOND   EDITION. 


THE  peculiar  importance  of  the  Law  of  Carriers  of  Goods 
and  Passengers  by  Land  and  by  Water,  and  the  great  advan- 
tage to  be  derived  by  the  public  from  a  knowledge  of  its 
rules  and  principles  as  they  are  applied  to  existing  com- 
mercial and  social  relations,  which  are  dilated  upon  in  the 
following  preface  to  the  first  edition  of  this  work,  have  been 
promptly  acknowledged  by  the  public  in  the  encourage- 
ment they  have  given  to  the  author  so  soon  to  prepare  a  new 
edition. 

In  this  second  edition,  the  author  has  taken  care  that  all 
the  authorities  on  the  subject,  American  and  English,  should 
be  introduced  which  have  been  reported  since  the  first  edi- 
tion was  published. 

JANUARY,  1851. 


PEE  FACE. 


IT  is  not  thought  requisite  to  tender  an  elaborate  apology 
for  presenting  to  the  public  a  work  upon  a  subject  of  so  great 
importance  as  the  Law  of  Carriers  of  Goods  and  Passen- 
gers, as  it  is  believed  that  it  must  with  the  public  be  a 
desideratum,  that  a  subject  of  jurisprudence  so  practical  as 
this,  and  one  so  intimately  connected  with  the  common  and 
daily  concerns  of  life,  should  not  only  be  settled  as  precisely 
and  as  uniformly  as  possible,  but  should  be  generally  under- 
stood. The  annals  of  navigation  and  commerce,  and  the 
records  of  commercial  jurisprudence,  attest  the  importance 
of  the  law  of  common  carriers  by  land  and  by  water,  and 
it  is  doubted  if  there  is  any  other  branch  of  this  depart- 
ment of  jurisprudence  which  so  naturally  tends  to  awaken 
a  desire  in  the  community  at  large  to  become  enlightened  in 
relation  to  it.  But  since  the  commencement  of  the  present 
century,  and  more  especially  since  American  inventive 
genius  has  rendered  the  accelerative  and  reliable  agency 
of  Steam  subservient  to  the  transportation  of  commodities 
and  of  travellers,  the  legal  duties,  liabilities,  and  rights  of 
public  carriers  of  both  things  and  persons,  have  become 
subjects  of  vastly  more  interest  and  greater  moment,  than 
before  this  era,  was  realized,  or  even  generally  anticipated, 
a* 


VI  PREFACE. 

This  era  was  soon  succeeded  by  the  event  of  the  introduction 
of  the  expeditious,  commodious,  and  now  common  means  of 
commercial  transportation,  and  mercable  and  social  inter- 
course by  land  ;  and  so  instrumental  have  Railroads  proved, 
in  combination  with  the  employment  of  the  agency  just 
mentioned,  in  cementing  in  this  connection  and  dependence 
sections  of  country  far  removed  from  each  other,  that  the 
interest  of  the  mercantile  and  travelling  public,  and  more 
especially  of  the  legal  profession,  in  the  direction  of  the 
subject  of  the  following  work,  has  attained  its  acme.  And 
yet,  the  only  works  professing  to  treat  of  the  subject,  and 
devoted  entirely  to  its  exposition,  which  the  author  has  been 
able  to  meet  with,  are  two  productions  by  English  authors, 
one  by  Jeremy,  and  the  other  by  Jones,1  the  first  of  which 
appeared  in  the  year  1815,  and  the  other  in  the  year  1827. 

It  must  be  obvious,  that  neither  of  these  productions  is 
at  all  adequate  to  answer  present  wants,  whatever  merit 
may  be  justly  ascribed  to  them,  and  however  valuable 
they  may  have  been  at  the  time  of  their  publication.  The 
late  learned  Mr.  Justice  Story,  in  his  well  known  and 
highly  valued  "  Commentaries  on  the  Law  of  Bailments," 
has  indeed  treated  upon  the  subject,  but  then  he  has  done 
so  by  considering  it  only  as  a  branch  of  his  general  subject, 
and  of  course  his  exposition  of  the  Law  of  Carriers  is  not 
nearly  so  comprehensive  and  satisfactory  as  it  would  have 
been,  had  he  considered  it  independently  or  by  itself. 

The  object  of  the  author  has  been  to  consider  the  law  on 
the  subject  proposed  as  it  now  is,  and  at  the  same  time  to 
point  out  such  discrepancies  as  he  has  discovered  to  have 
occurred,  in  the  course  of  the  gradual  adaptation,  by  judicial 

1  George  Frederick  Jones. 


PREFACE.  Vll 

tribunals,  of  leading  principles  to  the  vastly  multiplied  exi- 
gencies of  commerce  and  of  society.  In  the  exemplification 
of  these  principles,  he  has  been  impressed  with  a  sense  of 
the  propriety,  in  many  instances,  of  giving  an  expanded 
outline  of  the  facts  contained  in  an  adjudged  case.  In  gen- 
eral, the  cases  are  consistent  with  each  other  in  so  far  as 
regards  a  recognition  of,  and  disposition  to  respect,  the 
fundamental  doctrines  which  have  been  so  happily  and 
ingeniously  delineated  by  Sir  William  Jones,  and  by  the 
late  learned  Mr.  Justice  Story,  as  the  foundation  of  the 
general  law  of  bailments  ;  but  yet,  the  decided  cases,  as 
reported,  have  individually,  in  respect  to  the  facts  which 
characterize  them,  points  of  divergement,  which,  while  the 
common  elementary  chain  referred  to  is  essentially  preserved, 
have  frequently  rendered  them  entirely  sui  generis. 

In  the  case  of  Coggs  v.  Bernard,  contained  in  the  Appen- 
dix, Lord  Chief  Justice  Holt,  in  his  exposition  of  the  Law  of 
Bailments,  clearly  sets  forth  the  principles  on  which  the  Law 
of  Carriers  rests.  This  learned  Judge  not  only  earned  the 
reputation  of  considering  justice  as  a  cardinal  virtue,  and  not 
as  a  trade  for  maintenance,1  but  it  has  been  recorded  of  him  by 
a  contemporary,  that  "  his  dicta  and  responsa  might  in  gen- 
eral be  regarded  as  text  law,  as  those  of  Paulus,  Ulpian,  and 
Papinian,  in  the  Roman  Digest."  2  As  a  well-ordered  expo- 


1  See  the  Tattler,  No.  14. 

2  Preface  to  the  reports  of  cases  determined  by  Lord  Chief  Justice  Holt, 
from  1688  to  1710  :  London,  1738.     There  was  in  Lord  Holt  "  a  clearness 
and  perspicuity  of  ideas  when  he  defined ;  a  distinct  arrangement  of  them 
when  he  divided  his  subject ;   and  the  natural  difference  of  things  was 
made  obvious  when  he  distinguished  between  matters  which  form  an 
untrue  resemblance  of  each  other.     Having  thus  rightly  formed  his  pre- 
mises, he  hardly  ever  erred  in  his  conclusions."  —  Ibid. 


V111  PREFACE. 

sition  of  the  Law  of  Bailment  and  of  Carriers,  his  argument 
in  the  case  referred  to  has  rendered  it  a  leading  case  on  the 
subject,  and  has  given  it  a  rank  among  the  most  celebrated 
ever  decided  in  Westminster  Hall.1  No  higher  eulogium 
can  be  pronounced  upon  it  than  that  expressed  by  Sir  Wil- 
liam Jones,  when  he  is  content  that  his  own  admirable 
Essay  on  Bailments  shall  be  considered  merely  as  a  com- 
mentary upon  it ; 2  and  yet  Sir  William  Jones  has  differed 
somewhat  with  him  in  regard  to  the  division  of  the  subject 
of  bailments.3 

Many  doubts  and  intricacies  have  arisen  from  the  attempts 
of  common  carriers  to  claim  privileges  and  exemptions  which 
are  contrary  to  the  theory  of  the  law,  as  understood  in  the 
case  of  Coggs  v.  Bernard,  and  in  subsequent  and  even  con- 
temporaneous cases.  As  has  been  said,  by  a  learned  Eng- 
lish Judge  of  modern  times,  "  Carriers  are  constantly  endea- 
voring to  narrow  their  responsibility,  and  I,  says  he,  am  not 
singular  in  thinking  their  endeavors  ought  not  to  be  favored."  4 
This  remark  was  made  in  reference  to  the  attempted  evasion 
of  the  full  common  law  responsibility  of  common  carriers, 
by  their  assuming  an  abridgment  of  it  by  public  notices  to 
this  effect ;  in  other  words,  by  their  assumption  of  the  re- 
sponsibility only  of  special  contractors.  There  have  been 
comparatively  but  few  cases  of  this  sort  in  our  American 
Courts,  but  yet  the  question,  whether  common  carriers  have 
the  right  to  abridge  their  responsibility  as  such,  in  the  way 
referred  to,  has  been  very  seriously  considered  in  this  coun- 
try. We  refer  the  reader  to  the  cases  in  the  Appendix,  of 

1  1  Smith,  Lead.  Ca.  95. 

2  See  "  Lives  of  Eminent  Judges,"  London,  1846,  p.  135. 

3  See  infra,  Chap.  I.  $  13. 

4  Mr.  Justice  Burrough,  in  Duff  v.  Budd,  3  Bro.  &  Bing.  R.  177. 


PREFACE.  IX 

Hollister  v.  Nowlen,  and  Cole  v.  Goodwin,  in  the  Supreme 
Court  of  the  State  of  New  York.  They  have  been  placed 
in  the  Appendix  on  account  of  the  great  importance  of  the 
particular  subject  to  which  they  relate,  and  because  they 
contain,  according  to  Chancellor  Kent,  "  very  able  and 
learned  discussions  on  the  subject,  and  the  validity  and 
policy  of  the  stern  rule  of  the  Common  Law  are  ably  and 
successfully  vindicated."  J  The  same  reason  is  assigned  for 
having  inserted  in  the  Appendix  so  much  of  the  late  "  case 
of  the  Lexington,"  so  called,  decided  by  the  Supreme  Court 
of  the  United  States,  as  relates  to  the  same  peculiarly  im- 
portant subject. 

That  there  are  defects  in  the  following  work,  the  author 
is  not  so  presumptuous  as  to  deny.  Errors  he  has  studi- 
ously endeavored  to  avoid,  but  should  any  of  importance  be 
discovered,  notwithstanding  the  care  which  has  been  ob- 
served, he  may  betake  himself  against  too  severe  a  storm  of 
censure,  to  the  partial  shelter  of  an  old  reporter,  (of  no  great 
credit  for  accuracy,)  who  thus  speaks  to  his  readers  :  "  The 
errata  may  be  not  important,  or  uneasy  to  be  corrected  in 
the  reading  ;  wherein,  if  you  be  intent,  you  may  find  a  rea- 
sonable reciprocation;  your  judgment  may  correct  the  erratas 
of  the  book,  and  the  book  perchance  correct  somewhat  in 
your  judgment ;  and  then  you  have  acted  mutual  kindness, 
each  to  the  other."  2 

To  conclude,  the  author  is  aware  that  he  has  imposed 
upon  himself  an  arduous  undertaking ;  but  he  hopes  that 
he  may  be  rewarded,  at  least  with  the  knowledge,  that  he 


1  See  note  a,  to  2  Kent,  Comm.  p.  608. 

2  Pref.  to  Latch,  Reports  and  Cases,  En  la  Court  de  Bank  le  Roy, 
1662. 


X  PREFACE. 

has  succeeded  in  a  tolerable  degree,  in  abridging  the  labors 
and  in  guiding  the  inquiries  of  the  profession,  and  of  others 
whose  interest  or  curiosity  may  prompt  them  to  be  con- 
versant with  the  subject  of  any  portion  of  his  work. 

PROVIDENCE,  April  20,  1849. 


TABLE    OF    CONTENTS. 


CHAPTER  I. 

FAGK 

Preliminary  View  of  the  Law  of  Bailments          ...         1 

CHAPTER  II. 
Of  Carriers  without  Hire 19 

CHAPTER  III. 
Of  Carriers  for  Hire,  who  are  not  Common  Carriers     .         .       48 

CHAPTER  IV. 

Who  are  Common  Carriers          .        .         .         .         .         .       71 

CHAPTER  V. 

Of  the  Duty  of  a  Common  Carrier  to  receive  Goods,  and  of 
their  Delivery  to  him  as  the  Commencement  of  his  Re- 
sponsibility .  . 123 

CHAPTER  VI. 

Of  the  Responsibility  of  Common  Carriers  ...         .     146 

CHAPTER  VII. 

Of  the  Responsibility  of  Common  Carriers,  as  restricted, 
limited,  and  qualified,  by  Special  Contract,  and  by 
Statute  .  .'"  .  .  ".  .  .  .  .  226 

CHAPTER  VIII. 

Of  the   Termination   of  the   Carrier's   Responsibility,   by 

Delivery,  and  what  excuses  a  Non-delivery       .         .         .     286 


Xll  TABLE   OP   CONTENTS. 

• 

CHAPTER  IX. 

PAOK 

Of  the  Rights  of  Carriers  —  Rights  of  Possession,  of  Lien, 

and  of  Action  for  Freight      •*  .   .rr     .         .         .     349 

CHAPTER  X. 

Of  Actions  against  Carriers,  the  Declaration,  Pleas,  Evi- 
dence, Damages,  and  the  Parties  to  sue  and  be  sued  .     398 

CHAPTER  XI. 
Of  Carriers  of  Passengers 491 

CHAPTER  XII. 

Of  Carriers  of  Passengers  by  Water    .         .         .         ..-.'.     603 


CONTENTS  OF  THE  APPENDIX. 

SELECT  ADJUDGED  CASES. 

Coggs  v.  Bernard iii 

Hollister  v.  Nowlen     .         .     i-\i'^"fl       ....  xvii 

Cole  v.  Goodwin      .     : .  *,  .      .      *.••*./>!*  .:.     •         •         .  xxxii 

Case  of  the  Steamboat  Lexington     .,  •*  f     »•»  ,     .         .         .  Iii 


Acts  of  the  Congress  of  the  United  States  regulating  the 

Carriage  of  Passengers  in  Merchant  Vessels,  etc.  .  Ixxvi 

Acts  of  the  Congress  of  the  United  States  for  the  Safety  of 

Passengers  on  board  of  Steam-vessels  .  .  .  Ixxxiv 


Form  of  a  Libel  in  a  Suit  In  Rem  in  cases  of  Collision  of 

Vessels  upon  the  Lakes       .  ....  xci 


INDEX    TO    CASES    CITED. 


THE   FIGURES   REFER  TO  THE   SECTIONS. 


AMERICAN    CASES. 


A. 


Section 

75,  134,  281 
80 
316 
59,86 
468 


Ackley  v.  Kellogg 
Adam  v.  Hay 
Albatross  v.  Wayne 
Alexander  v.  Green 
Allen  v .  Duncan 
Allen  v.  Sewall  77,  80,  83,  85,  91, 
99,  101,  104,  146,  153,  426 
Allen  v.  Williams  503,  508 

Alley  v.  Blen  282 

Amory  v.  McGregor  484 

Anderson  v.  Foresman  33 

Anderson  v.  Highland  Turn.  Co.  251 
Anjou  v.  Deagle  146 

Anonymous  v.  Jackson  68,  124,  220 
Arnold  v.  Halenbrake  81 

Arthur  v.  Schooner  Cassius        486 
Ash  v.  Putnam  374 

Atwood  v.  Reliance  Trans.  Co.  153, 
202,  239,  243,  273 
Aymar  v.  Astor  80,  168,  170 


B. 

Babcock  v.  Breene 
Bachelder  v.  Heagan 
Backhouse  v.  Sneed   153,  171 

Baker  v.  Woodruff 
Baldwin  v.  Collins 
Banker  v.  Cheviot 
Barber  v.  Brace 


82 
566 
173, 
192 
4 

251 
399 

88,  218 
b 


Section 

Barker  w.  Havens  397 

Barnes  v.  Cole  556 

Barnes  v.  Kurd  603 

Barney  v,  Prentiss  254 

Barnwell  v.  Hussey  180 

Batrom  v.  McKee  408 

Baxter  v.  Rodman  587 

Bean  v.  Green  243,  251,  267 

Bean  v.  Sturtevant  77,  91 

Beardslee  v.  Richardson  27,  38, 433, 

468 

Beekman  v.  Shouse  38,  46,  47,  61, 
77,  243,  247,  254 

Beers  v.  Housatonic  Railr.  Co.  538, 
541,  557 

Bell  v.  Read  80,  173,  202,  207,  518 
Bennett  v.  Button  110,  243,  521, 
525,  526,  527,  590 
Bennett  v.  Filyaw 
Bigelow  v.  Heaton 
Bingham  v.  Rogers 


83,  95 
374 

110,  221,  243, 
478 

Bishop  v.  Ely  575 

Blanchard  v.  Buck-man  399 

Blanchard  v.  Isaacs       77,  129,  146 


Bland  v.  Womach 
Blair  v.  Jeffries 
Blin  v.  Campbell 
Blin  v.  Mayo 
Blythe  v.  Marsh 
Boardman  v.  Keeler 
Bolen  v.  Williamson 
Bolin  v.  Haffnagle 


166 


33 
353 
606 
300 
168 
587 
118 
340 


XIV 


INDEX   TO   CASES   CITED. 


Section 

Bonner  0.  Marsh  497,  503 

Bostwick  0.  Campion  92,  582,  589 
Bowman  0.  Hilton  83,  356,  414 
Bowman  v.  Teall  57,  81,  114,  160, 
333,  334,  338,  490 
Boyce  v.  Anderson  67,  122,  153, 

521,  522 

Boyer  v.  Anderson  588 

Boyle  0.  McLaughlin  162,  181,267, 

283, 331 

Boynton  0.  Turner  602 

Bradstreet  v.  Baldwin  400 

Bridge  0.  Austin  487 

Brooks  0.  Ball  65 

Brown  0.  Denison  75 

Brown  0.  Hunt  399 

Brown  «.  Lull  187 

Brownell  0.  Flaggler  556,  557,  569 
Bryant  0.  Commonw.  Ins.  Co.  187 
Buckley  0.  Farniss  340 

Bullard  0.  Young  326,  431 

Bullock  0.  Babcock  607 

Burckle  v.  N.  Y.  Dry  Dock  Co.  557 
Burgess  0.  Gun  382,  393 

Burroughs  0.  Housatonic  Railr. 

Co.  566 

Burton  0.  Wilkinson  337 

Buskirk  v.  Purrington  366 

Bussey  0.  Donaldson  193,  519,  664 

C. 

Camden  &  Amboy  Railr.    & 

Trans." Co.  v.  Belknap  135,238 
Camden  &  Amboy  Railr.  & 

Trans.  Co.  0.  Burke  78,  110,  267, 
274,  523,  534 
Camden  &  Amboy  Railr.  Co. 

v.  Briggs  128 

Campbell  0.  Morse  76 

Campbell  0.  Phelps  603 

Cariss  0.  Johnston  213 

Carpenter  v.  Branch  24 

Carsley  0.  White  648 

Gary  &  Wife  0.  Berkshire  Railr. 

Co.  600 

Cassilley  0.  Young  227 

Caton  0.  Barney  86,  668 

Caze  0.  Baltimore  Ins.  Co.  39S,  407 
Certain  logs  of  mahogany  379,  400 
Chafflin  v.  Wilcox  545,  606 

Chamberlain  t>.  Chandler  610,  621 


Section 

Champion  v.  Bostwick  580 

Chandler  v.  Belden  387 

Chandler  v.  Brainard  585 

Chandler  v.  Sprague  507 

Charleston  &  Columbia  Steam- 
boat Co.  v.  Bason  178 
Chase  v.  Debolt                            515 
Chase  v.  Maberry  21 
Cheney  v.  Boston  &  Maine  Railr. 

Co.  609 

Cheviot  v.  Brook  187 

Chickering  v.  Fowler         297,  301, 

306 

Churchill  v.  Rosebeck         545,  556 
Citizens  Bank  v.  Nantucket  Steam- 
boat Co.    68,  76,  82,  84.  91,  101, 
102,  124,  136,  419 
Clapp  v.  Young  669 

Clark  v.  Faxton  238 

Clark  v.  McDonald  122 

Clark  v.  Reed  585 

Clarke  v.  Richards        80,  173,  274 
Clarke  &  Co.  r.  Spence  38,  61, 205, 
432,  476,  478 

Cobb  v.  Abbott  583 

Coffin  v.  Storer  399 

Cohen  v.  Hume     80,  82,  130,  140, 

537 

Coke  v.  Cordova    223,301,311,313 

Cole  v.  Goodwin  83,  110,  113,  114, 

115,  124,  125,  142,  153, 220, 221, 

233,  235,  237,  238,  245,  253,  259, 

261,  264,  266,  267,  318,  356,  534 

Collins  et  al.  v.  Union  Trans.  Co.  397 

Collman  v.  Collins  366 

Colt  0.  McMechen  80,  155, 174, 202 

Columbian  Ins.  Co.  v.  Ashby     368 

Commonwealth  v.  Power  525,  530, 

538,  590 

Commonwealth  0.  Allen  549 

Commonwealth  v.  Connly  59 

Conrad  v.  Atlantic  Ins.  Co.         508 
Conwell  v.  Voorhees  121 

Cook  v.  Champlain  Trans.  Co.  428, 

566 

Cook  0.  Gourdin  165,  525 

Copland  v.  N.  E.  Mar.  Ins.  Co.  577 
Craig  v.  Childress  71,  80 

Crane  0.  The  Rebecca        205,  218 
Crosby  v.  Fitch      80,  88,  153,  160, 
166,  176,  179,  226 
Cutler  0.  Winsor  587 

Cummins  v.  Spruance  67 


INDEX   TO    CASES    CITED. 


XV 


Section 


D. 


Dalton  v.  Favour  606 

D'Anjou  v.  Ball  323,  338 

D'Anjou  v.  Deagle  509 

Danseth  r.  Wade  83,  168, 202,  227 
David  v.  Moore  481 

Davis  v.  Crawford  368 

Day  v.  Ridley  274,  472 

De  Mott  v.  Larraway  81,  153,  194, 

282 

Dickinson  v.  Haslitt  174,  205,  412 
Dodge  v.  Bartol  216 

Dover  v.  Mills  45 

Dulany  v.  The  Sloop  Pelagio  193 
Duncan  v.  Railroad  Co.  122 

Dunlop  v.  Munroe  118 

Dright  v.  Brewster  38,  70,  77, 100, 
254,  430,  431,  433,  580 
D'Wolf  v.  New  York  Fire  Ins.  Co. 

495 


Eagle  v.  White    78,  153,  243,  282, 
283,  288,  297 

Edwards  v.  Kerr  400,  413 

Edwards  v.  Todd  411 

Eldridge  v.  Long  Island  Railroad 

Co.  538,  547 

Elliott  v.  Rossell    80,  88,  167,  174, 

182,  185,  518 

Emery  v.  Hersey         100,  105,  173 
Enos  v.  Tuttle  468 

Erskine  v.  Thames  282,  283 

Everett  v.  Saltus         495,  497,  506 
Ewart  v.  Street    169,  170,  180,  202 


F. 


Fairchild  v.  Slocum       94,  153,  226 
Farmers  &  Mechanics  Bank  v. 

Champlain  Trans.  Co.          316 

Farnsworth  v.  Groot  90,  630 

Faulkner  v.  Wright       80,  83,  129, 

182,  187 

Favor  v.  Philbrick  285 

Farwell  r.  Boston  and  Worcester 
Railroad  Co.   540,  541,  546,  568, 
577 


Section 

Ferguson  v.  Cappeau          223,  231 
Fish  v.  Ross  71,  241,  245 

Fish,  &c.  v.  Newberry  365 

Fisk  v.  Newton  291,  313 

Fitch,  &c.  v.  Goodell,  &c.          364 
Fooie  v.  Storrs  45,61 

Ford  v.  Monroe  596 

Forsyth  v.  Walker  75 

Foster  v.  Essex  Bank      10,  21,  22, 
33,  35,  60 
Frith  v.  Barker  414 


G. 


Galloway  v.  Hughes  300,  301 

Gardner  v .  Greene  82 

Gardner  v.  Ship  New  Jersey      193 
Gardner  v.  Smallwood  205 

Garrigues  v.  Coxe  170 

Gates  v.  Miles  606 

Gibbons  v.  Ogden       *  631 

Gibson  v.  Culver        282,  295,  297, 
301,  304,  313,  316 
Giles  v.  The  Cynthia  391 

Gillingham  v.  Dempsey      482,  487 
Gilmore  v.  Carman  157 

Gogle  v.  Jacoby  415 

Goodman  v.  Stewart  356 

Goodridge  v.  Lord  173 

Goodwyn  v.  Douglas  495 

Gould  v.  Hill  221,239 

Gordon  v.  Hutchinson  8,  66,  70,  76, 

126 

Gordon  v.  Buchanan      80,  155,  167 
Gordon  v.  Little  80 

Gowdy  v.  Lyon  414 

Graff  v.  Bloomer  282,  299 

Graves  v.  Ticknor  38,  40,  433 

Green  u.  Hollingsworth  51 

Griffith  v.  Ingledew    282,  491,  495, 
499,  504,  505 

Griggs  v.  Austin  391 

Grinell  v.  Cook  609 

Griswold  v.  New  York  Ins.  Co.  398, 

414 


H. 

Hale  v.  New  Jersey  Steam  Nav. 
Co.  83,  153,  158,  225,  242 


XVI 


INDEX   TO    CASES    CITED. 


Section 

Hall  w.  Conn.  River  Steamboat 

Co.  539 

Hall  v.  Power  530 

Hammond  v.  McClure  338 

Hand  v.  Baynes  59,  160,  177,  283, 

294,  482 

Hand  v.  The  Elvira  193 

Harding  v.  Foxcroft  587 

Harlow  v.  Humiston  557 

Harrell  v.  Owens  282 

Harrington  v.  M'Shane  80,  83,  100 
Harrington  v.  Lyles  81,  173 

Harris  v.  Rand  160,  282 

Hart  v.  Allen  199,  207 

Hartfield  v.  Rover      559,  607,  608, 

636 

Hartshorne  v.  Johnson  357 

Hastings  v.  Pepper        80,  88,  153, 
202,  205,  213 
Hawkins  v.  Dutchess  &  Orange 

Steamboat  Co.          657,  661,  663 
Hawkins  v.  Hoffman  110,  115,  262, 
*       264,  432,  433,  521 
Hawkins  v.  Pythian  122 

Hayn  v.  Corbett  201 

Hazard  v.   New   England  Ins. 

Co.  172 

Hazard  v.  Hazard  580 

Herbert  v  Hallett  368 

Helena,  The  200 

Hemphill  v.  Chenie     300,301,311 
Herman  v.  Drinkwatvr      431,  476, 
477,  478 

Heywood  v.  Middleton  356 

Hill  v.  Campbell  442 

Hill  v.  Humphreys  283,  287 

Hobart  v.  Drogan     •  193 

Hollister  v.  Nowlen       47,  83,  110, 

114,  124,  127,  153,  220,  233,  238, 

245,  253,  255, 259,  261, 264,  266, 

267,  318,  534 

Rowland  v.  The  Lavina     375,  391 
Hoyt  v.  Allen  451 

Hughes  v.  Boyer  574 

Humphreys  v.  Reed     81,  205,  298, 
409,410,  469 

Hunt  v.  Haskell  332,  352 

Hunt  v.  Wynn  436 

Huntress,  Case  of  the         136,  324, 

420 

Hurd  v.  Pendrigh  65 

Hurrill  v.  Owens  124,  155 

Hyde  0.  Noble  63,  431 


I. 


Section 


Ilsley  v.  Stubbs  497 

Ingalls  v.  Bill     521,  534,  535,  53fi, 

548,  568,  569,  570 


J. 

Jencks  «.  Coleman       83,  525,  530, 
532,  590 

Jenkins  v.  Pickett  73 

Johnson  v.  Friar  168 

Jones  v.  Pitcher     80,  83,  148,  157, 

166 

Jones  v.  Voorhees  77,  110, 115,  240 
Jordan  v.   Fall   River  Railroad 

Co.  571 

Jordan  v.  James  356 

Jordan  v.  Warren  Ins.  Co.          398 
Joseph  Harvey,  The  193 


K. 

Keeler  v.  Fireman's  Ins.  Co.      193 

Kemp  v.  Coughtry  80,  88,  100,  104, 

153,  189 

Kennard  v.  Burton  599,  638 

Kennedy  v.  Way  545 

Kimball  v.  Tucker  173 

King  v.  Lenox  99,  145 

King  «.  Richards  335,  337,  367 
King  v.  Shepherd  419,  472,  489 
Kingman  v.  Spurr  585 

Kingsford  v.  Marshall  180 

Kitchell  v.  Vanador  350 


L. 

Ladd  v.  Chotard  147 

Laing  v.  Colder  569 

Lane  v.  Crombie  470,  557 

Lane  v.  Penniman  376,  400 

Lapham  v.  Greene  494 

Larned  v.  The  Trustees  of  the 

Village  of  Syracuse  630 

Law  v.  Hatcher  495 

Lawrence  v.  M'Gregor  164,  198 

Laying  v.  Stewart  397 

Leech  ».  Baldwin       211,  409,  414, 

415 


INDEX   TO   CASES   CITED. 


XV11 


Section 

Lenox  v.  U.  Ins.  Co.  215,  218 

Lewis  v.  Western  Railr.  Co.     323, 

330 

Lexington,  case  of,  see  New  Jer- 
sey Steam  Nav.  Co.  v.  &c. 
Little  v.  Conant  595 

Little  v.  Semple  227 

Littlejohn  v.  Jones  82 

Lloyd  v.  Barden  146 

Lock  ».  Swan  399 

Locky  v.  M'Dermott  76,  351 

Logan  v.  Ponchartrain  Railroad 

Co.  110 

Lorent  v.  Steinmitz   '  332 

Loring  v.  Aborn  531,  590 

Low  v.  D'Wolf  503,  508 

Lowry  v.  Russell  179 

Lowry  v.  The  Steamboat  Port- 
land 655,  657,  660 
Ludlow  v.  Browne  503,  511 
Ludwig  v.  Meyre        282,  283,  482 
Lyon  v.  Smith  69 


M. 

M'Allister  ».  Hammond  606 

Marcardier  v.  Chesapeake  Ins. 

Co.  379 

Marine  Ins.  Co.  v.  United  States 

Ins.  Co.  407 

Markham  v.  Brown  525,  530 

Marsh  v.  Blythe  168 

Martin  v.  Salem  Ins.  Co.  129,  172 
M'Arthur  v.  Sears  80,  83,  88,  154, 
155,  188,  195,  197,  199 
Mary  &  Susan,  The  497 

Mason  v.  Thompson  609 

May  v.  Babcock  226,  228 

M'Cahan  v.  Hirst  430 

M'Call  v.  Forsyth  424,  451,  591 
M'Clure  v.  Hammond  71,  80,  173, 

518 

M'Clure  v.  Richardson  71 

McDaniel  v.  Emanuel  122 

McGill  v.  Rowland     110,  116,  124, 

478,  479,  481 

McGregor  v.  Kilgore  168,  227,  484 
McHenry  v.  Railroad  Co.  76,  77, 
129,  153,  154,  316,  490 
McLane  v.  Sharpe  540,  549 

McLean  v.  Rutherford  35,  37 

McMillian  v.  U.  Ins.  Co.  193 

b* 


Section 

Merrimack,  The  511 

Merwin  v.  Butler  77,  100,  286 

Miles  v.  James  130 

Miles  v.  Johnson  80 

Milligan  v.  Wedge  574,  575 

Milliken  v.  Greer  468 

M'Kinney  v.  Niel  274,  523,  534, 
540,  541,  544,  547,  569,  592 
Mohawk  &  Hudson  Railroad 

Co.  v.  Niles  &  Co.  586 

Monroe  v.  Leach        545,  556,  557, 

559,  570 

Monteith  v.  Bissell  32 

Moore  v.  Sheredine,  297 

Morgan  v.  North  Am.  Ins.  Co.  400 
Moses  v.  Norris  70,  80,  153,  430, 

433 

Mumford  v.  Com.  Ins.  Co.  403 
Murphy  v.  Stanton  80,  202 

Murray  u.  So.  Car.  Railroad 

Co.  578 

N. 

Navigation  Co.  v.  Hungerford  530 
Neal  v.  Sanderson  226 

New  Haven.   Steamboat  and 

Trans.  Co.  v.  Vanderbilt  167,  638 

New  Jersey  Steam  Nav.  Co.  v. 

Merchants'  Bank      98,  100,  124, 

153,  221,225,237,  244,  251, 

267,  268,  275,  419,  420,  468, 

494,  515,  571,  610 

Newton  v.  Pope  61 

New  York  City  v.  Miln      631,  632 

Nourse  v.  Snow  485 

Noyes  v.  Morris  557 


O. 

O'Connor  v.  Foster  483 

Oliver  v.  Maryland  Ins.  Co.         176 
Oliver  v.  New  York  and  Erie 

Railroad  Co.  538 

Orange  Bank  v.  Brown        83,  110, 

115,  127,  245,  258,  262,  264, 

266,  422.  426 

Ostrander  v.  Brown    291,  300,  305, 

311 
Overiqgton  v.  Dunn  563 


XV111 


INDEX   TO   CASES    CITED. 


Section 


P. 


Pacard  v.  Bordier  315 

Packard  v.  Getman  145,  313 

Palmer  v.  Barker  636,  637 

Palmer  v.  Lorillard  400 

Paragon,  The  205 

Pardee  v.  Drew  115,262 

Parker  v.  Adams  557 

Parker  v.  Flag?  157,  224,  282 

Parsons  v.  Hardy         81,  160,  283, 
289, 332 

Pate  v.  Henry  290 

Patton  v.  M'Grath       83,  159,  224, 
230,  435,  438,  456,  519 
Payne  v.  Smith  602 

Peck  v.  Ellis  427 

Peck  v.  Neil       534,  540,  541,  545, 

570 

Peixottiw.  M'Laughlin       109,  110, 

111 
Penn.  Dell,  and  Md.  Nav.  Co. 

v.  Dandrige  59,  86 

Penobscot  Boom  Corp.  v.  Baker  45 
Penoyer  v.  Hallet  399 

Phillips  v.  Earle  137,  264 

Picket  v.  Downer  315 

Pinney  v.  Wells  385,  388 

Plaisted  v.  Steam  Nav.  Co.         282 
Platt  v.  Hibbard  61,  63,  75 

Pomeroy  v.  Donaldson  82,  153,  165 
Pool  v.  Bridges  468 

Porterfield  v.  Brooks  83,  214 

Portland  Bank  v.  Stubbs  376 

Postern  v.  Postern  468 

Potter  v.  Lansing         497,  503,  505 
Potter  v.  Suffolk  Ins.  Co.  180 

Powell  v.  Bradlee  506 

Powell  v.  Myers  83,  110,  114,  270, 
318,  320,  321,  324 
Powers  v.  Davenport       70,  76,  164 
Powers  v.  Mitchell  58 

Prentiss  v.  Barney  243 

Pudor  v.  Boston  &  Maine  Railr. 

Co.  115,478 

Purviance  v.  Angus  519 

Putnam  v.  Wood  173 


R. 

Rainhard  v.  Hovey  585 

Rapp  v.  Palmer  351,  355 


Section 

Rappelyea  v.  Hulse  602 

Rathbun  v.  Payne  556,  637,  638 
Reaves  v.  Waterman  153,182,198 
Redden  v.  Spiuance  468,  530 

Reed  v.  Dick  208 

Reeves  v.  Ship  Constitution       193, 
641,  642,  666 

Relf  v.  Rapp  258,  261 

Reynolds  v.  Tappan  147 

Richards  v.  Gilbert  80,  160 

Roberts  v.  Turner  75,  94,  153 

Robertson  v.  Kennedy  74,  155 
Rogers  v.  Brig  Rival  655 

Ross  v.  Callender  186,  198 

Rossiter  v.  Chester  328,  332 

Rowley  v.  Bigelow  231 

Ruggles  v.  Bucknor  379 

Runyan  v.  Caldwell  61,  122 

Rutherford  v.  McGowen       82,  214 


S. 

Sailers  ».  Everett  349,  352,  354 
Saltus  v.  Ocean  Ins.  Co.  398,  414 
Sanderson  v.  Lamberton  466,  494 
Sargent  v.  Gile  431 

Satterlee  v.  Grant  72 

Sawyer  v.  Goslin  340 

Schiefflin  v.  Harvey     80,  147,  190, 

518 

Schmidt  v.  Blood  61 

Schooner  Anne  193 

Schooner  Reeside  167,  212,  229 
Schooner  Volunteer  379 

Schooner  Argyle  v.  Worthington, 

396 

Schroyer  v.  Lynch  119,  120 

Schureman  v.  Withers  393,  413 
Searle  v.  Scovil  403 

Sewall  v.  Allen  264 

Shaw  v.  Reed  664 

Sheldep  v.  Robinson     46,  77,  100, 
127,  153,  327 
Shiefflin  v.  New  York  Ins.  Co. 

187,  403 

Ship  Nathaniel  Hooper  398 

Simpson  v.  Hand       556,  565,  634, 

636,  649 

Singleton  v.  Hilliard  159,  230,  244 
Skinner  v.  Housatonic  Railroad 

Co.  600 

Slater  v.  Gaillard  356 


INDEX  TO   CASES   CITED. 


XIX 


Section 

Smith  v.  Condry  664,  665 

Smith  v.  Griffith  488 

Smith  v.  Seward  82,  422,  424, 436, 

439 

Smith  v.  Smith  557,  563,  636 

Smith  v.  Wright  215,218 

Smyil  v.  Niolon  81,  153,  182,  187, 

202 

Sneider  v.  Geiss  478 

Snell  v.  Rich  193 

Snow  v.  Eastern  Railroad  Co.  480 
S.  P.  in  house  v.  Schooner  Lex- 
ington 306 
Spencer  v.  Campbell  567 
Spencer  v.  Daggett  81,  153 
Spencer  ».  Percival  606 
Spencer  v.  White  397 
Spivy  v.  Farmer  80,  82,  91 
Sproul  v.  Hemmingway  667 
Sprowl  v.  Kellar  83,  155,  157 
Stanton  v.  Bell  33 
Steamboat  Co.  v.  Bason  83,  153, 

157 

Steamboat  Co.  v.  Whillden         670 
Stebbins  v.  Palmer  593 

Steinman  v.  Wilkins  66,  126 

Stevens  v.  Little  Miami  Rail- 
road Co.  578 
Stewart  v.  Pratt  38 
Stitt  v.  Wilson                             468 
St.  John  v.  Van  Stantwood  95 
Stokes  v.  Saltonstall    61,  122,  523, 
541,  543,  547,  568,  569 
Stone  v.  Ketland                          519 
Stone  v.  Knowlton              441,  442 
Storer  v.  Gower                      27,  40 
Strout  v.  Foster                           643 
Swindler  v.  Billiard     83,  153,  159, 
224,  230,  267 


T. 

> 

Taintor  v.  Prendergast  494 

Taylor  v.  Wells  106 

Thomas  v.  Boston  &  Prov.  Rail- 
road Corp.       45,  69,  78,  96,  153, 
200,  243,  303 

Thompson  v.  Bridgewater  558 

Thompson  v.  Lothrop  469 

Thorn  v.  Hallett  469 

Thorn  v.  Hicks  518 

Thorn  v.  Deas  12,  19 


Section 

Todd  v.  Fingley  334 

Tompkins  v.  Saltmarsh  27,  40,  45, 
64, 468 
Tower  v.  Utica  &  Schenectady 

Railroad  Co.  113,140 

Tracy  v.  Wood  22,  27,  29,  31,  32 
Treadwell  v.  Union  Ins.  Co.  187 
Trent  r.  Cartersville  Bridge  Co. 

82 

Tunnell  v.  Pettijohn  99 

Turney  v.  Wilson  71,  80,  155,  168, 

202,  230 

U. 

United  States  v.  Jones  200 

United  States  v.  Palmer  200 

United  States  v.  Smith  200 
United  States  v.  The  Louisa 

Barbara  627 

United  States  v.  The  Pirates  200 

United  States  v.  Tully  200 
United  States  Ins.  Co.  v.  Scott  354 


V. 

Vanderbilt  v.  Turnpike  Co.         660 
Vanderslice  v.  Steam  Tow-boat 

Superior  668 

Van  Stantwood  v.  St.  John       281, 

301,  313 

Venus,  The  512 

Vincent  v.  Stinehour  602 


W. 

Walcott  v.  Canfield  438,  591 

Waldron  v.  Copper  602 

Wallace  v.  Vigus       160,  283,  464, 

484 

Walpole  v.  Bridges  153 

Walter  v.  Brewer  146 

Warden  v.  Green       211,231,414, 

483 

Ware  v.  Gay        470,  534,  535,  569 
Waring  v.  Clark  669 

Waring  v.  Morse  218 

Washington  v.  Ship  Saluda        193 
Waterman  v.  Robinson  348 

Waters  v.  Mer.  Louisville  Ins. 
Co.  201 


XX 


INDEX   TO    CASES   CITED. 


Section 

Watkinson  v.  Laughton     189,  484, 

518 

Watson  v.  Duykinck  391 

Weed  v.  Schenectady  &  Saratoga 
Railroad  Co.         78,  93,  95,  115, 
422,  426,  428,  429,  441,  531 
Wells  v.  Steam  Navigation  Co. 

59,  86,  221,  239 

Welsh  v.  Hicks  407 

Wetmore  v.  Baker  584 

Whitesell  v.  Crane     110,  248,  476, 

527 

Whitesides  v.  Russell        168,  202, 

227 

Whitney  ».  Lee  7,11,21,60 

Williams  v.  Branson  80,  81,  168 
Williams  v.  Grant  80,  88,  176, 183 
Williams  v.  Hitchcock  122 


Section 

Williams  v.  Peytarin  129 

Williamson  v.  Price  194 

Wilson  v.  Millar  187 

Wilt  0.  Vickers  607 

Wolcott  v.  Eagle  Ins.  Co.          394 
Wright  v.  Wilcox  604,  605 

Wynn  v.  Allard  541,  565 


Y. 

Yates  v.  Brown  193,  664 

Young  v.  Smith  286,  295,  297,  304 


Z. 


Zell  v.  Arnold 


428,  451 


INDEX   TO   CASES   CITED. 


XXI 


ENGLISH   CASES. 


A. 

Section 

Beck  v.  Evans                        53,  279 

Section 

Beckford  r.  Crutwell                   449 

Adderley  v.  Cookson                    616 

Bennett  v.  Clough                        416 

Agricola,  The                               665 

Bennion  v.  Davison                     456 

Aid  rich  v.  Great  Western  Rail- 

Berkley v.  Watling                     231 

road  Co.                                     567 

Bernal  v'.  Pirn                               373 

Alexander  Wise,  The                 669 

Bevin  v.  Waters                            66 

Amies  v.  Stevens       154,  155,  173, 

Bingnold  v.  Waterhouse    146,  252, 

174,  207,  274 

266 

Amory  v.  Delamirie                     474 

Binns  v.  Pigot                              364 

Andlew  v.  Moorehouse                399 

Bird  v.  Astock                                215 

Ann  v.  Mary,  The                       654 

Birkett  v.  Willan                         297 

Ansel  v.  Waterhouse  422,  425,  525 

Birley  v.  Gladstone                      383 

Armsworth  v.  So.  Eastern  Rail- 

Bishop v.  Pentland                       180 

road  Co.                                    600 

Black  v.  Blaxendale            284,  490 

Artaza  v.  Smallpiece                   370 

Blakely  v.  Dickson                       399 

Aston  ».  Heaven  522,  536,  541,  553 

Blanck  v.  Solly                            416 

Atkinson  v.  Buckle                      393 

Bodenham  v.  Bennett            54,  297 

Atkinson  v.  Ritchie                     226 

Boehm  v.  Coombe                 96,  140 

Attersol  v.  Bryant                        433 

Borne  v.  Perrault  (Canada)          80 

Attorney-General  v.  Call             193 

Boson  v.  Sandford       88,  422,  426, 

Austin  v.  Drew                            224 

518 

Boss  v.  Litton                               563 

Bothlingk  v.  Inglis              339,  497 

B. 

Boucher  v.  Lawson                        87 

Boulston  v.  Sanderford                 124 

Baillie  v.  Mondigliani                  407 

Bowcher  v.  Noidstrom                 193 

Baker  v.  Bolton                   597.  600 

Boyce  v.  Bayliffe                         624 

Baldwin  v.  Cole                            431 

Bovce  v.  Chapman                         89 

Bancroft's  case                             215 

Boys  v.  Pink                          140,  257 

Barclay  v.  Heygana                     191 

Bracket  v.  McNair                      484 

Barclay  v.  Y.  Gana                      191 

Bradley  v.  Waterhouse                261 

Barton  v.  Wolliford              166,  200 

Brandt  v.  Bowlby                482,  511 

Bastard  v.  Bastard               124,  392 

Brecknock  &  Abergavenny  Ca- 

Basten v.  Butler                           408 

nal  Nav.  (case  of)                      59 

Bates  v.  Todd                               231 

Brecknock  &  Abergavenny  Ca- 

Batson v.  Donovan       23,  167,  258, 

nal  Nav.  v.  Pritchard               294 

264,  266,  272,  356 

Bremner  v.  Williams                   534 

Baylis  v.  Usher                            338 

Bretherton  v.  Wood    422,  426,  440, 

Beale  v.  Thompson                      401 

524,  591 

Beauchamp  v.  Powley          27,  514 

Brickhead    v.    Archbishop    of 

Beaver,  The                                 626 

York                                         427 

XX11 


INDEX   TO    CASES   CITED. 


Section 

Bridge  v.  Grand  Junction  Rail- 
way Co.  538, 556,  639 
Brien  j>.  Bennett  542 
Brind  v.  Dale       48,  57,  59,  61,  74, 
140,  457 

Bristol  v.  Wilsmore  374 

Broadwater  ?;.  Blot  52 

Brooke  v.  Pickwick    108,  247,  250, 

264,  266 

Brown  v.  Hodgson  492,  497 

Bruce  v.  Wait  510 

Brucker  v.  Fromont  572 

Bryans  v.  Nix  510 

Buckman  v.  Levi  143 

Buddie  v.  Wilson  422 

Buller  v.  Fisher  636 

Burbridge  v.  Jakes  449 

Burgess  v.  Gray  515 

Burrell  v.  North  465 

Butler  v.  Basing  76,  77,  475 

Butler  v.  Hearne  248 

Butterfield  v.  Forrester       556,  557 


C. 

Cailiff  v.  Danvers  57,  169 

Cairns  v.  Mills  7 

Cairns  v.  Robins  57,  108 

Camoys  v.  Scurr  205,  212 

Campbell  v.  Morse  155,  162 

Carpue  v.  London  &  Brighton 

Railway  Co.    538,  540,  541,  546, 

569 

Carruthers  v.  Sydebotham          665 
Catherine,  The  652,  670 

Catrey  v.  Wintringham  308 

Cavenagh  v.  Such         89,  277,  513 
Cayle's  Case  59 

Celt,  The  671 

Chamberlain  v.  Cooke  447 

Chamberlain  v.  Williamson         593 
Chandler  v.  Broughton  604 

Chaplin  v.  Hawes  555 

Chapman  v.  Allen  43 

Chase  v.  Westmore  66,  385 

Childrens  v.  Saxby  478 

Childs  v.  Sands     '  425 

Christiana,  The  193 

Christie  v.  Griggs        61,  522,  534, 
536,  569 

Christie  v.  Lewis         376,  377,  379 
Christy  v.  Rowe  397 


Section 

City  of  Edinburgh,  The  193 

Clark  v.  Hutchins  251 

Clark  v.  Grey  253,  446 

!  Clay  v.  Willan      61,  220,  253,  446 

!  Clayton  ».  Hunt  248,  249 

|  Clarke  v.  Grey  234 

j  Clunnes  v.  Perrey  474 

Coates  v.  Chaplain     495,  496,  498, 

504,  505 

I  Coates  v.  Railton  343 

Cobden  v.  Bolton  234,  246 

Cobham  v.  Downe  129,  146 

Coggs  v.  Bernard  2,  11,  13,22,24, 
35,  37,  47,  60,  67,  70,  87,  148, 
151,  173,  189,  191,232,422 
Coleman  v.  Lambert  503 

Colvin  v.  New  berry  378 

Collinson  v.  Larkins  638 

Columbine,  The  657 

Cooke  v.  Jennings  405 

Cooper  v.  Barton  61 

Coppin  v.  Braithwaite  532 

Corbett  v.  Packington          435,  439 
Corbin  v.  Leader  615 

Cotterill  v.  Starkey  541,  563 

Covell  v.  Laming  602 

Cowell  v.  Simpson  386 

Cowper  v.  Willomatt  431 

Cranch  v.  White  63 

Craven  v.  Ryder  503 

Crawshay  v.  Eades  342 

Crawshay  v.  Homfray         386,  390 
Croft  v.  Alison  604 

Crofts  v.  Waterhouse        536,  540, 
541,  551 

Crozier  v.  Smith  399 

Cullen  v.  M'Alpine  443,  467 

Culpepper  ».  Good  135 

Curling  v.  Long  401 

Curtis  v.  Drink  water  537 


D. 

Dale  v.  Hall         87,  129,  148,  169, 
170,  173,  202,422,  455 

Dalston  v.  Janson  446 

Davidson  v.  Gwynne  210 

Davies  v.  Mann  561 

Davis  v.  Garrett  164,  175,  206 

Davis  v.  James  500 

Davis  v.  Willan  248 

Davy  v.  Mason  139,  143 


INDEX   TO    CASES    CITED. 


Section 

Dawes  v.  Peck  497,  499 

De  Hahn  v.  Hartley  294 

De  Symonds  v.  De  la  Cour  469 
De  Vaux  v.  Salvador  641 

Devereux  v.  Barclay  270,  336,  432 
Dickon  v.  Clifton  '  422,  430 

Ditcham  v.  Chivis  449 

Dixon  v.  Baldwin  340,  345 

Doe  v.  Martin  251 

Doorman  v.  Jenkins  21,  22,  27,  33, 
40,  64 

Drewry  v.  Twiss  449 

Dudley  v.  Smith  531,  541 

Duff  v.  Budd  23,  244,  270,  297, 

326,  496 
Duke  of  Sussex,  The  652,  658, 

659,  668 

Dundee,  The  193,  652 

Dunnage  v .  Joliffe  312 

Button  v.  Solomonson  497 


E. 

East  India  Co.  v.  Evans  478 

East  India  Co.  v.  Pullen  142 

Ebenezer,  The  650 

Edwards  v.  Brewer  340 

Edwards  v.  Sherratt    125,  258,  356 
Ellis  v.  Hunt  340,  345 

Ellis  v.  Turner  12,  89,  269 

Elwell  v.  Grand  Junction  Rail- 
way Co.  451,  572 
Evans  v.  Hutton  190, 289,  293,  459 
Evans  v.  Martlett  506 
Evans  v.  Soule  278 


F. 

Faith  v.  Ea.  Ind.  Co  371 

Fama,  The  665 

Farrar  r.  Adams  211 

Figgins  v.  Cogswell  441 

Finacune  v.  Small  48,  61 

Fitzherbert  v.  Mather  251 

Fleming  v.  Smithers  567 

Fletcher  v.  Braddick  193,  664,  667 

Fletcher  v.  Gillespie  212 

Fletcher  v.  Inglis  180 

Forward  v.  Pittard  75,  131,  148, 

150,  154,  156,  188,  191, 
202,  232,  282,  304 


Section 

Foster  v,  Frampton  347 

Fowler  v.  Kymer  377 

Freeman  v.  Birch         45,  491,  492, 

499,  504 

Freeman  v.  Ea.  India  Co     187,  431 
Fregans  v.  Long  129,  497 

Fremont  v.  Coupland  581 


G. 

Gabay  v.  Lloyd  214 

Gale  v.  Laurie  193,  670 

Garnett  v.  Willan  12,  23,  266,  271, 

297 
Garside  v.  Trent  &  Mersey  Nav. 

Co.  96,  282,  301,  302,  304 

Gatliffe  v.  Bourne          83,  299,  458 
Gazelle,  The  657 

Gibbon  v.  Paynton      127,  220,  260, 

266 

Gilbert  v.  Dale         45,  69,  135,  463 
Girolamo,  The  664 

Gisbourne  ».  Hurst  69,  76 

Goff  v.  Clinkard  50,  87,  129 

Golden  v.  Manning  296 

Goodhall  v.  Skelton  344 

Goodwin  v.  Richardson  348 

Gosling  v.  Birney  335 

Gosling  v.  Higgins     193,  292,  329, 

348 

Gough  v.  Bryan  543,  556 

Gould  v.  Oliver  217 

Govett  v.  Radnidge    422,  429,  430, 

436,  440 

Grace  v.  Grace  593 

Green  ».  Beesly  581 

Greene  v.  Emslie  201 

Greenway  v.  Fisher  364 

Gregory  v.  Piper  604 

Griffith  v.  Lee  249,  471 

Grote  v.  Chester  &  Holyhead 

Railway  Co.  538 

Grngen  v.  Jolly  248 


H. 

Hadley  t>.  Clark  59,  289,  294 

Hagedorn  v.  Whitmore  166 

Hall  v.  Hollander  598,  608 

Hall  v.  Pickard  606 

Hambly  v.  Trott  422,  426,  435,  593 


XXIV 


INDEX  TO   CASES   CITED. 


Section 

Section 

Handyside  v.  Wilson          651,  660 

J. 

Hanson  v.  Meyer                         370 

. 

Hardman  v.  Willcock                  336 

Jackson  v.  Cummins                43,  66 

Harmond  v.  Pearson                    646 

Jackson  v.  Nichol                        345 

Harris  «.  Packwood    61,  140,  220, 

Jackson  v.  Rogers        124,  125,  356 

259 

Jackson  ».  Tollett                         541 

Hart  v.  Jones  (Canada)              212 

Jackson  v.  Walker                      264 

Hart  v.  Sattley                             501 

Jacobs  v.  Latour                            66 

Hatchwell  v.  Cooke              47,  417 

Jacobs  v.  Nelson                         497 

Hawkes  v.  Smith                         472 

James  v.  Jones                             147 

Hawkins  v.  Cooper                      564 

James  Watt,  The                         656 

Hawkins  v.  Finlayson                 469 

Jameson  v.  Dunkeld                     651 

Heard  v.  Mountain                       541 

Jenkins  v.  Blizard                        249 

Helsby  v.  Mears            93,  252,  278 

Johann  v.  Friederich,  The          610 

Herbert  v.  Lane                           447 

Johnston  v.  Crane                        217 

Hibbert  v.  Carter                         503 

Johnson  v.  Hill                            364 

Higgins  v.  Bretherton                 368 

Jones  v.  Boyce                             547 

Higgins  v.  Senior                        494 

Jones  v.  Stuart  (Canada)            148 

Hinton  v.  Dibdin    23,  54,  267,  268, 

Joseph,  The                                  626 

277 

Joseph  v.  Knox           492,  501,  504 

Hobbitt  v.  Northwestern  Rail- 

Judin v.  Samuel                            441 

way  Co.                                     475 

Judson  v.  Etheridge                       43 

Hodgson  v.  Fullarton              47,  48 

Hodgson  v.  Malcom                      199 

Holderness  v.  Collinson               358 

K. 

Holding  v.  Liverpool  Gas  Co.     453 

Holl  v.  Griffin                                335 

Kenrick  v.  Eggleston  215,  220,  260 

Hollingworth  v.  Brodrick    173,  205 

Kent  v.  Elstob                             634 

Hoist  v.  Pownal                           346 

Ker  v.  Mountain                  531,  609 

Hope,  The                   645,  651,  661 

Kerr  v.  Willan                             248 

Hopkins  v.  Logan                        434 

Kettle  v.  Bromsdale                       37 

Horncastle  v.  Farran                   371 

Kieran  v.  Sanders                        335 

Home  v.  Whitmore                     294 

King  v.  Pippet                             441 

Howard  v.  Tucker                       231 

Kinloch  v.  Craig                          510 

Hunter  v.  M'Gown                      223 

Kirkham  v.  Shawcross          96,  360 

Hunter  v.  Potts                              169 

Knight  v.  Quarles                591,  594 

Hunter  v.  Prinsep                        405 

Hunter  v.  Westbrook                  491 

Hutton  v.  Bolton   .                      253 

L. 

Hutton  v.  Bragg                          377 

Hurry  v.  Mangles                          341 

Lack  v.  Seward                            635 

Hvde  v.  Trent  &.  Mersey  Nav. 

Lambert  v.  Robinson                   368 

Co.  74,  75,  76,  89,  133,  143,  156, 

Lane  v.  Cotton             117,  125,356 

232,  277,  282,  296,  301,  309 

Latham  v.  Rutley                         446 

Laugher  v.  Pointer     575,  581,  667 

Lawrence  v.  Aberdeen                214 

I. 

Lawton  v.  Sweeney                     474 

Leame  v.  Bray                             602 

Illige  v.  Goodwin                         563 

Leeds  v.  Wright                          345 

Ireland  v.  Johnson                        440 

Leeman  v.  Gordon                       617 

Ireland  v.  Thompson                    354 

Leeson  v.  Holt     220,  234,  236,  249 

Israel  v.  Clarke            534,536,541 

Leigh  v.  Smith                             140 

Itinerant,  The                             650 

Leuckhart  v.  Cooper                   361 

INDEX  TO   CASES   CITED. 


XXV 


Section 

LeNeve  v.  Edinburgh  &  London 

Shipping  Co.  641 

Levy  v.  Herbert  418 

Lewis  v.  Marshall  392 

Liddard  v.  Lopes  187 

Ligo,  The  669 

Lingard  v.  Bromley  427 

Little  v.  Cowley  339 

Lockhart  v.  Cooper  66 

Loescharn  v.  Williams  344 

London  Packet,  The  653 

Long  v.  Home  528,  541 

Lovett  v.  Hobbs  124,  125,  140 

Lubbock  v.  Inglis  324,  432 

Lucas  v.  Godwin  267 

Lucas  v.  Nockels  389 

Lucas  v.  Birmingham  and  Glou- 
cester Railway  Co.  212 
Luke  v.  Lyde  "  404,  405,  407 
Luxford  v.  Large  556,  638 
Lynch  v.  Nurdin  562 
Lyon  v.  Wells  173,  267,  274 


M. 

Macha  v.   London    &    South 

Western  Railway  Co.  91 

Mackenzie  v.  Cox  50 

Mackintosh  v.  Sla.de  193,  665 

Macklin  ».  Waterhouse  124 

Macmanus  v.  Crickett  604 

Mahew  v.  Boyce  541,  554 

Mahew  v.  Nelson  467 

Malton  v.  Nesbit  625 

Manning  v.  Newnham  187 

Maria,  The  665 

Maria  and  Vrow  Johanna,  case 

of,  The  152 

Marriott  v.  Stanley  638 

Marsh  v.  Home    '  61,  279 

Mary  Stewart,  The  643,  669 

Mashiter  v.  Bullar  399 

Massachusetts,  The  643,  664 
Maving  v.  Todd           234,  236,  251 

Mayhew  v.  Eames  251 

Mayor  v.  Humphries  450,  543 
Mayor  of  Colchester  v.  Brook     561 

Max  v.  Roberts  440 

McLaughlin  v.  Pryor  602,  604 

M'Combie  v.  Davis  431 

Messiter  v.  Cooper  524,  531 

Michel  v.  Abestree  603 


Section 

Middleton  v.  Fowler  77,  107 

Miles  v.  Cottle  41,141,263 

Miles  et  ul.  v.  Bainbridge  et  al.  408 
Milligan  v.  Wedge  574 

Mills  v.  Ball  346 

Mitchel  v.  Ede  511 

Mitchell  v.  Tarbutt  425 

Moffatt  v.  East  Ind.  Co.      391,  394 
Moises  v.  Thornton  440 

Moor  v.  Moorgue  27 

Moore  v.  Wilson  500 

Moorish  v.  Foote  469 

Moreton  v.  Harderne  603,  606 

Morley  v.  Gainsford  604 

Morse  v.  Slue       87,  129,  189,  200, 
220,  518 

Mosley  v.  Fosset  52 

Mouse's  Case  215 

Muddle  v.  Stride  83 

Muller  v.  Gernon  416 

Mulloy  v.  Backer  391,  619 

Munn  v.  Baker  246 

Muschamp  v.  Lancaster  Rail- 
way Co.  78,  95,  97 
Mytton  v.  Cock  25 

N. 

Nathan  v.  Giles  508 

Nelson  v.  Mackintosh     23,  26,  27, 

28 

Neptune  the  2d,  case  of,  The      193 
Newbern  v.  Just  267,  463 

Newberry  v.  Colvin  378 

Newman  v.  Walters  623 

Newton  ».  Tring  375 

Nichols  v.  Bastard  493 

Nichols  v.  Clint  510 

Nicholls  v.  Le  Feuvre  343 

Nicholson  v.  Mounsey  664 

Nicholson  v.  Willan  220,  232 

Norman  v.  London  &  Brighton 
Railway  Co.  212 


O. 

Ogle  v.  Atkinson  335 

Ogle  w.  Barnes  603 

Olive  v.  Eames  69 
Oppenheim  v.  Russell         346,  362 

Orme  v.  Broughton  593 

Owenson  v.  Morse  344 


XXVI 


INDEX   TO    CASES    CITED. 


Section 


P. 


Palmer  v.  Grand  Junction  Rail- 
way 78,  214,  249,  278,  538 
Palmer,  The  Gen.  193 
Parker  v.  Great  Western  Rail- 
way Co.  78,  128,  136 
Parker  v.  James  206 
Parry  v.  Roberts  39 
Paxson  v.  Watson  294 
Pendergast  v.  Compton  622 
Penny  v.  Porter  442 
Penrose  v.  Wilkes  397 
Perth,  The  656 
Phillip  v.  Rodie  381 
Phillips  v.  Biggs  427 
Phillpot  v.  Kefley  63 
Pickering  v.  Barclay  166,  200 
Pickering  v.  Buck  355 
Pickford  v.  Grand  Junction  Rail- 
way Co.  78,  136,  418 
Piggot  v.  East  Counties'  Rail- 
way Co.  566 
Pluckwell  v.  Wilson  167,  549,  556, 

565 

Powell  v.  Layton  422,  426 

Pozzi  v.  Shipton  422,  437 

Priestly  v.  Fowler  577,  578 

Proprietors  of  Trent  &  Mersey 

Navigation  v.  Wood  196 

Protector,  The  665 


Q. 

Quarman  v.  Bennett 
Quiggin  v.  Duff 


R. 

Race  Horse,  The 
Randleson  v.  Murray 
Raisin  v.  Mitchell 
Raitt  v.  Mitchell 
Raphael  v.  Pickford 
Rapson  v.  Cubitt 
Rawson  v.  Haigh 
Rawson  v.  Johnson 
Rex  v.  Bass 
Rex  v.  Everett 
Rex  v.  Humphrey 
Rex  v.  Laverden 


575 
313,314 


401 
129 
639 
386 

45,  284,  448 
594 
468 
418 
477 
440 

66,  358 
477 


Section 

Rich  v.  Kneeland  79 

Richards  v.  London  &  South 

Coast  Railway  Co.  318 

Richardson  v.  Atkinson  431 

Richardson  v.  Dunn  497 

Ridley  v.  Gyde  468 

Riley  v.  Home  124,  125,  127,  152, 

202,  220,  233,  259,  266,  267, 

356 

Ripley  v.  Schaife  173 

Robins,  Exparte  125 

Robinson's  Case  477 

Robinson  v.  Dunmore    57,  59,  113, 
142,  334,  464,  500 
Robinson  v.  Turpin  308 

Robinson  v.  Ward  48 

Rogers  v.  Head  49,  124 

Rohl  v.  Parr  172 

Rooth  v.  Wilson  24,  34 

Rose,  The  652,  656 

Roskell  v.  Waterhouse         75,  134 
Ross  v.  Hill  46,49,60,112 

Ross  v.  Johnson  63,  326,  422,  431, 

433 

Rothero  v.  Elton  469 

Rowe  v.  Pickford  302 

Rowley  v.  Home  249 

Rowning  v.  G-oodcliild  120 

Ruckers,  Case  of,  The  610 

Rudie  v.  North  Western  Rail- 
way Co.  475,  600 
Rushforth  v.  Hadfield  66,  301,  357, 
358,  360 

Russell  v .  Anstwick  586 

Rutley  v.  South  Eastern  Rail- 
way Co.  212 


S. 


Samuel  v.  Darch 

Sanderson  v.  Bell 

Sargent  v.  Morris 

Saville  v.  Campion 

Scarfe  v.  Morgan 

Scott  v.  Pettit 

Seecombe  v.  Wood 

Selway  v.  Holloway 

Sharp  v.  Grey 

Shaw  v.  York  &  North  Midland 

Railway  Co.  214 

Shaw  v.  York  &  South  Midland 

Railway  Co.  446 


444,  464 
43 

495,  504,  506 

376 

66 

345 

644,  669 
143 
535,  536 


INDEX   TO    CASES   CITED. 


XXV11 


Section 

Shelby  ».  Scotchford  335 

Shepard  v.  De  Bernales  397 

Shields  v.  Davis  492 

Shiells  v.  Blackburne  21,  36 

Shipton  v.  Thornton  402 

Shubrick  v.  Salmon  294 

Siboni  v.  Kirkman  595 

Sills  v.  Brown      167,  556,  638,  651 
Sims  v.  Bond  494 

Siordet  v.  Brodie  620 

Siordet  v.  Hall  83,161 

Sissons  v.  Dixon  416 

Skinner  v.  Upshaw  356 

Sleat  v.  Fagg         12,  264,  271,  435 
Sleath  v.  Wilson  573 

Small  v.  Moates  380 

Smith  v.  Birch  491 

Smith  v.  Birmingham  Railway 

Co.  212 

Smith  v.  Dobson  640 

Smith  ».  Home     55,  220,  232,  450 
Smith  v.  Scott  166,  636 

Smith  v.  Shepherd  195 

Soldergreen  v.  Flight          370,  373 
Southcote's  case  20,  37,  220 

Speed,  The  651 

Spence  v.  Chadwick  226 

Stables  v.  Eley  572 

Stephens  v.  Elwell  270 

Stephenson  v.  Hart    270,  297,  325, 
326,  496,  502 

Steinman  v.  Bush  667 

Stockdale  v.  Dunlap  496 

Stokes  v.  De  La  Riviere  339 

Stork  v.  Harris  120 

Storrs  v.  Crowley        295,  297,  304 
Streeter  v.  Horlock  75 

Strong  v.  Natally  281,  308 

Stuart  v.  Crawley  214 

Sunbolf  v.  Alford  375 

Sutton  v.  Mitchell  223 

Swain  v.  Shepherd  495 

Swainston  v.  Garrick  212 

Syeds  v.  Hay  339 

Syms  v.  Chaplin  140,  144 


T. 


Tapley  v.  Martin 
Tate  v.  Meek 
Taylor  in  re 


397 
384 
468 


Taylor  v.  Plummet 
Thames,  The 
Thomas  v.  Day 
Thompson  v.  Whitmore 
Thorogood  v.  Marsh 
Thorough  ».  Bryan 
Titchburne  v.  White 
Traveller,  The 
Trent  Nav.  Co.  v.  Wood 
Tuberville  v.  Stamp 
Tucker  v.  Cracklin 
Tucker  v.  Humphrey 
Turley  v.  Thomas 
Turner  v.  Hawkins 
Turrill  v.  Crawby 
Two  Friends,  The 
Tyler  v.  Morrice 


U. 

Upshaire  ».  Aidee 
Upston  v.  Slark 


V. 


Section 
335 

193,  652 
282 
166 
156 
561 
258 
654 

79,87,149 
567 

449,  472 
341 
550 
606 
367 

626,  669 

127,  259 


107,  112 
69,  463 


Vale  v.  Dale  447 

Vanderplank  v.  Miller  556,  635 

Vaughn  v.  Menlove  7,  27,  567 

Vennall  v.  Garner  635,  651 

Vere  v.  Smith  48 

Vernon,  The  665 

Virgil,  The  650 

Volcano,  The  644 


W. 

Wakeman  v.  Robinson  563 

Waland  v.  Elkins          93,  516,  581 
Walker  v.  Jackson          51,  82,  233 
Walker  v.  London   &   South- 
west Railway  Co.  214 
Walker  v.  Southwestern  Rail- 
way Co.                                     538 
Wallace  v.  Woodgate  373 
Ward  v.  Felton                             371 
Wardell  v.  Mourillyan       294,  300, 
307,  313 

Waterhouse  v.  Skinner  418 

Wayde  v.  Carr  549 

Weall  v.  King  436 


XXV1U 


INDEX   TO   CASES   CITED. 


Section 

Webb  m  re  75,  213,  302,  304 

Webb  v.  Page  265,  452,  453 

Welsh  v.  Lawrence  563 

Whally  v.  Wray  57 

Wheatly  v.  Lane  600 

White  v.  Humphrey  19 

Whitamore  v.  Waterhouse  469,  603 
Whitfield  v.  De  Spencer  117 

White  v.  Boulton  513,  521 

Wicks  v.  Gordon  449 

Willbraham  v.  Snow  348 

William,  Case  of,  The  32,  35,  182, 

193 

Wilsmhurst  v.  Bowker  511 

Williams  v.  Cranston  89,  146,  277, 

514 

Williams  v.  East  India  Co.  38 

Williams  v.  Holland  167,  556 

Wilson  v.  Anderton  335 

Wilson  v.  Brett  23,  36 

Wilson  v.  Dickson  90,  187,  223 
Wilson  v.  Freeman  278 

Wilson  v.  Furman  515 

Wilson  v.  Kymer  371 

Wingfield  v.  Packington  127,  278 


Seciiou 

Winterbottom  v.  Wright  579 

Wolf  v.  Beard  564 

Wolf  v.  Summers  375,  609 

Woodleif  v.  Curteis  148,  149 

Woodrop  Sims,  The  Case  of    193, 
642,651,  670 

Woodward  v.  Booth  449 

Wooley  v.  Riddelien  283 

Wordsworth  v.  Willan  552 

Wright  v.  Snell  361,  495 

Wyld  v.  Pickford  23,  54,  233,  245, 
268,  423,  428,  430,  432,  454 


Y. 

Yate  v.  Willan  442,  446 

Yates  v.  Duff  618 

Yates  v.  Railton  384 

Yates  v.  Mennell  384 

Yorke  v.  Grenaugh  363 
York  v.  North  Midland  Railway 

Co.  277 

Youle  v.  Harbottle  270,  326,  433 

Young  v.  Fewsou  613 


TEEATISE 

ON    THE 

LAW  OF   CARRIERS. 


CHAPTER  I. 

PRELIMINARY    VIEW    OF    THE    LAW    OF    BAILMENTS. 

§  1.  ANY  person  undertaking  gratuitously  to  convey  for 
another  person,  goods,  chattels,  &c.,  is  called  in  the  Civil 
Law  mandatarius,  and  by  the  writers  and  commentators  on 
the  Common  Law,  the  mandatary;  and  the  person,  who, 
for  such  purpose,  employs  him,  is,  in  the  language  of  the 
Civil  Law,  mandans  or  mandator,  or  director  or  employer. 
But  the  persons  who  constitute  the  most  numerous  class  of 
carriers,  are  those  who  undertake  to  carry  for  another  for 
hire  or  reward.  Every  person  who  accepts  goods  or  money 
to  be  carried  to  a  particular  destination  for  reward,  paid  or 
agreed  to  be  paid  him,  for  the  carriage  of  them,  impliedly 
lets  out  his  labor  and  care  in  return  for  the  reward  ;  and 
the  contract  belongs  to  the  class  Locatio  Opens,  which  was 
styled  by  the  Roman  Jurists,  Locatio  Operis  Mercium  Vehen- 
darum.  or  the  letting  out  of  the  work  of  carrying  merchan- 
dise. The  owner  of  the  merchandise  who  delivered  it  to  the 
carrier  to  be  carried,  was  the  letter  of  the  work  of  carrying, 
and  he  was  also,  at  the  same  time,  the  hirer  of  the  labor 
and  services  of  the  carrier ;  whilst,  on  the  other  hand,  the 
carrier  was  both  the  hirer  of  the  work  of  carrying,  and  the 
letter  of  his  own  labor  and  services,  to  be  employed  with 
care  about  the  conveyance  of  the  merchandise.  Of  this 
description  of  carriers,  there  are  known  in  the  Common  Law 
1 


2  LAW   OF   CARRIERS.  [CH.  I. 

two  kinds,  viz.,  private  carriers,  and  public  carriers  :  the  lat- 
ter being  usually  denominated  common  carriers,  and  being 
by  far  the  most  numerous  and  most  important  class  of  paid 
carriers. 

§  2.  By  the  Common  Law,  the  liabilities  resulting  from 
the  delivery  of  goods  to  a  carrier  of  either  of  the  above 
mentioned  descriptions,  to  be  carried,  forms  an  important 
part  of  the  law  of  bailments.  Indeed,  of  all  the  various 
contracts  that  belong  to  the  head  of  bailment,  that  between 
a  carrier  and  his  employer,  is  by  far  the  most  important, 
extensive,  and  useful.  But  there  is  high  authority  for  the 
propriety  of  directing  attention  to  the  law  of  bailment  in 
general  for  a  just  comprehension  of  that  portion  of  it  to  which 
persons  acting  especially  in  the  capacity  of  carriers  are  sub- 
ject. Lord  Chief  Justice  Holt,  in  giving  judgment,  with 
much  consideration,  in  the  celebrated  case  of  Coggs  v.  Ber- 
nard, upon  a  question  involving  the  principle  of  responsi- 
bility for  the  safe  conveying  of  goods,  deemed  it  proper,  in 
order  "  to  show  the  grounds  upon  which  a  man  shall  be 
charged  with  the  goods  put  into  his  custody,  to  show  the 
several  sorts  of  bailments  ;  "  and  this,  says  he,  he  did,  "  not 
so  much  that  they  are  all  of  them  so  necessary  in  order  to 
maintain  the  proposition  which  is  to  be  proved,  as  to  clear 
the  reason  of  the  obligation  which  is  upon  persons  in  cases 
of  trust."  l  If  it  be  required  then,  in  the  opinion  of  one  of 


1  Coggs  v.  Bernard,  2  Lord  Raym.  R.  909  ;  and  see  the  case  in  the 
Appendix.  In  this  case,  Lord  Chief  Justice  Holt  seems  to  have  traced 
with  great  attention,  the  subject  of  bailments,  and  he  cites  many  passages 
from  Bracton  which  he  has  nearly  copied  from  Justinian.  The  report  of 
this  case  in  the  first  volume  of  the  reports  of  Sir  John  Comyns,  p.  133, 
is  not  near  as  full  and  satisfactory  as  the  report  in  Lord  Raymond's  Re- 
ports, just  referred  to,  and  which  is  given  in  our  Appendix.  The  learned 
editor  of  Coke  upon  Littleton,  speaking  of  Lord  Holt's  argument  in  this 
case,  says  :  "  Lord  Chief  Justice  Holt's  argument  in  that  case,  as  re- 
ported by  Lord  Raymond,  particularly  merits  attention,  it  being  the  most 
masterly  view  of  the  whole  subject  of  Bailment."  Harg.  Co.  Litt.  89  b, 


CH.  I.]  BAILMENTS.  3 

so  high  authority,  of  a  Judge,  to  proceed  in  the  mode  thus 
suggested,  to  be  enabled  to  arrive  at  a  satisfactory  conclusion 
upon  a  single  propounded  question,  involving  the  principle 
of  the  legal  liability  of  carriers,  how  much  to  be  respected  is 
the  suggestion  by  an  author  professing  to  consider  every 
question  which  has  been  propounded  to  the  Courts  of  Com- 
mon Law  on  that  subject,  from  the  earliest  to  the  latest 
adjudged  case.  It  thus  seems,  as  it  were,  imperative,  before 
commencing  to  treat,  as  is  now  proposed,  of  the  law  of  car- 
riers as  a  distinct  and  independent  subject,  to  show  the  several 
sorts  of  bailments,  and  to  give  a  compendious  view  of  that 
more  general  branch  of  the  law  to  which  the  decisions  in 
respect  to  the  legal  liability  of  a  carrier  have  reference  ;  and 
it  is  intended,  in  so  doing,  to  have  free  recourse  to  the  pro- 
found legal  erudition  and  philosophical  labors  both  of  Sir 
William  Jones 1  and  the  late  learned  Mr.  Justice  Story.2 

§  3.  Sir  William  Jones,  it  may  be  premised,  has  expressed 
his  astonishment  at  the  fact,  that  so  important  a  branch  of 
jurisprudence,  as  the  title  bailment,  in  the  English  law,  should 
have,  from  the  reign  of  Elizabeth  to  the  reign  of  Anne,  pro- 
duced more  contradictions  and  confusion,  more  diversity  of 
opinion  and  inconsistency  of  argument,  than  any  other  part 
of  judicial  learning  equally  simple.3 

§  4.  To  begin  with  the  definition  of  the  term  bailment.  It 
is  derived  from  the  French  word  battler,  which  signifies  to 


n.  3.     Abridged  reports  of  different  parts  of  Lord  Holt'sopin  i  on  are  in 
Holt's  Reports,  13,  131,  528. 

1  An  Essay  on  the  Law  of  Bailments,  by  Sir  William  Jones,  Knt.  (4th 
Eng.  edit.) 

2  Commentaries  on  the  Law  of  Bailments,  with  Illustrations  from  the 
Civil  and  Foreign  Law,  by  Joseph  Story,  LL.  D.,  one  of  the  Justices  of 
the  Supreme  Court  of  the  United  States,  and  Dane  Professor  of  Law  in 
Harvard  University.     4th  edition,  1846. 

3  Jones  on  Bailm.  2,  3. 


4  LAW   OF   CARRIERS.  [CH.  I. 

deliver ; l  and  it  is  a  compendious  expression  to  signify  a 
contract  resulting  from  delivery.2  Sir  William  Jones  has 
defined  bailment  to  be,  "  A  delivery  of  goods  on  a  condition 
express  or  implied,  that  they  shall  be  restored  by  the  bailee 
to  the  bailor,  or  according  to  his  directions,  as  soon  as  the 
purpose  for  which  they  are  bailed  shall  be  answered."  3  In 
another  part  of  his  essay  he  offers  a  definition  in  language 
somewhat  different,  saying,  "  A  delivery  of  goods  in  trust, 
on  a  contract,  express  or  implied,  that  the  trust  shall  be  duly 
executed,  and  the  goods  re-delivered,  as  soon  as  the  time  or 
use,  for  which  they  were  bailed,  shall  have  elapsed,  or  be 
performed."  4  Blackstone  has  defined  bailment  to  be,  "  A 
delivery  of  goods  in  trust  upon  a  contract,  express  or  implied, 
that  the  trust  shall  be  faithfully  executed  on  the  part  of  the 
bailee  ;  "  5  and  again,  a  "  Delivery  of  goods  to  another  person 
for  a  particular  use."  6  Story,  without  professing  to  enter 
into  a  minute  criticism,  thinks  it  may  be  said,  that  "  A  bail- 
ment is  a  delivery  of  a  thing  in  trust  for  some  special  object 
or  purpose,  and  upon  a  contract,  express  or  implied,  to  con- 
form to  the  object  or  purpose  of  the  trust."  7  Kent  may  be 
considered  to  have  blended,  in  some  measure,  the  definitions 
of  Jones  and  Blackstone,8  and  he  refuses  to  apply  the  term 
bailment  to  cases  in  which  no  return  or  delivery,  or  re- 
delivery  to  the  owner  or  his  agent  is  contemplated.  "  Bail- 


1  2  Black.  Comm.  451.    "  It  may  be  observed,"  says  Sir  William  Jones, 
"  that  this  is  the  only  contract  to  which  the  French  (from  whom  our  word 
bailment  was  borrowed,)  apply  a  word  of  the  same  origin  ;  for,  the  letting 
of  a  house  or  chamber  for  hire  is  by  them  called  bail  d,  layer,  and  the 
letter  for  hire  bailleur,  that  is,  bailor,  both  derived  from  the  old  word,  bailler, 
to  deliver."     Jones  on  Bailm.  90. 

2  Story  on  Bailm.  $  2. 

3  Jones  on  Bailm.  1. 

4  Ibid.  117. 

5  2  Black.  Comm.  451. 

6  Ibid.  395. 

'  Story  on  Bailm.  §  2,  p.  4,  (4th  edit.) 

8  So  Story  thinks  ;  Story  on  Bailm.  ub.  sup. 


CH.  I.]  BAILMENTS.  5 

ment,"  he  says,  "  is  a  delivery  of  goods  in  trust,  upon  a 
contract,  express  or  implied,  that  the  trust  shall  be  duly  exe- 
cuted, and  the  goods  restored  by  the  bailee,  as  soon  as  the 
purpose  of  the  bailment  shall  be  answered."  1  In  these  defi- 
nitions, it  will  be  observed,  bailment  is  called  a  contract ;  and 
although  it  has  been  thought  by  some,  whose  opinions  are 
entitled  to  consideration  and  weight,  that  in  some  of  the 
species  of  bailment,  contract  does  not  subsist2;  yet  that 

1  2  Kent,  Comm.  558.  In  Les  Termes  de  la  Ley,  first  published  in  1563, 
there  appears  the  following  definition  of  bailment,  and  one  which  shows 
that  the  principles  of  this  branch  of  the  law  were  not,  as  above  stated  in 
the  text,  at  so  late  a  period  as  that  between  the  reigns  of  Elizabeth  and 
Anne,  clearly  understood.     The  definition  is,  —  "  Bailment  is  a  delivery 
of  things,  whether  writings,  goods  or  stuff,  to  another  ;  sometimes  to  be 
delivered  back  to  the  bailor,  that  is,  to  him  that  so  delivered  it ;  sometimes 
to  the  use  of  the  bailee,  that  is,  of  him  to  whom  it  is  delivered  ;  and  some- 
times, also,  it  is  delivered  to  a  third  person.     This  delivery  is  called  a 
bailment."     This  definition  is  considered  singularly  loose  and  unsatisfac- 
tory, and,  considering  the  recognized  accuracy  of  the  work  from  which  it 
is  cited,  it  is  corroboratory  proof  that,  at  the  time  the  above-named  work 
was  first  published,  the  principles  of  this  branch  of  the  law  were  not  very 
clearly  understood ;  for  it  mentions  as  a  class  of  bailments,  distinct  from 
those  in  which  there  is  to  be  a  re-delivery  to  the  bailor,  or  a  delivery  to  a 
third  person,  the  case  of  goods  delivered  to  the  use  of  the  bailee;  but  in 
all  such  cases,  there  must  be  a  trust  to  re-deliver  to  the  bailor,  or  to  de- 
liver to  a  third  party,  or  there  would  be  no  bailment ;  the  last-mentioned 
class  is  also  very  incorrectly  worded,  —  "  Sometimes,  also,  it  [query  what?] 
is  delivered  to  a  third  person."     If  this   be  taken  to    mean  that  the 
subject-matter  of  the  bailment  is  delivered  to  a  third  person,  he  would  be 
the  bailee  ;  but  the  meaning  must  be,  (though  the  original  French  —  "  H 
est  deliver  a  un  tierce  person"  —  will  hardly  warrant  that  construction,) 
that  the  thing  bailed  is  to  be  delivered  by  the  bailee  to  a  third  person.     See 
English  Monthly  Law  Magazine  for  April,  1839.     Where  a  contract  was 
made  between  a  miller  and  other  persons,  by  which  the  former  agreed  to 
take  from  the  latter  wheat,  and  give  them  one  barrel  of  flour  for  every  four 
bushels  and  thirty-six  pounds  of  wheat,  it  was  held,  that  the  contract  was 
one  of  sale,  and  not  of  bailment ;  and  that  the  destruction  of  the  wheat, 
after  its  delivery,  by  the  burning  of  the  mill,  was  the  loss  of  the  miller, 
and  was  no  defence  to  an  action  for  the  price.     Baker  v.   Woodruff, 
2  Barb.  (N.  Y.)  R.  520. 

2  See  an  able  article  by  the  late  Mr.  J.  B.  Wallace,  of  the  Philadelphia 
Bar,  in  the  American  Jurist  for  1837,  vol.  16,  p.  253  to  285. 

1* 


6  LAW  OF  CARRIERS.  [CH.  I. 

term  is  used,  when  speaking  of  bailment  generally  by  Courts 
and  Judges,  without  reference  to  the  distinction  of  its  several 
species.1 

§  5.  It  is  obvious,  from  the  foregoing  definitions,  that  the 
law  of  bailments  involves  what  Sir  William  Jones  calls, 
"  the  great  question  of  responsibility  for  neglect"  a  question 
upon  which  Blackstone  speaks  so  loosely  and  indetermi- 
nately, that  no  fixed  ideas  can  be  collected  from  his  words ; 
though  his  commentaries  are  the  most  correct  and  beautiful 
outline  that  ever  was  exhibited  of  any  human  science.2 
Before  considering,  therefore,  the  different  kinds  of  bail- 
ments, this  great  question,  which  is  of  the  utmost  importance 
in  illustrating  the  law  of  carriers,  demands  attention.  From 
the  obligation  contained  in  the  definition  of  bailment,  to  restore 
the  thing  bailed  at  a  certain  time,  it  follows  that  the  bailee 
(a  carrier  for  instance)  must  keep  it,  and  be  responsible  to 
the  bailor,  (the  person,  for  instance,  by  whom  a  carrier  is 
employed,)  3  if  it  be  lost  or  damaged ;  but  as  the  bounds  of 
justice  would,  in  most  cases,  be  transgressed,  if  he  were 
made  liable  for  the  loss  of  it  without  his  fault,  he  can  only 
be  obliged  to  keep  it  with  a  degree  of  care  proportioned  to  the 
nature  of  the  bailment ;  and  the  investigation  of  this  degree, 
in  every  particular  contract,  is  the  problem  which  involves 
the  principal  difficulty.4 

§  6.  As  to  the  various  degrees  of  care  or  diligence  which 
are  recognized  in  the  law,  Sir  William  Jones,  with  his  char- 
acteristic acuteness,  says,  "  that  there  are  infinite  shades, 
from  the  slightest  momentary  thought  or  transient  glance  of 
attention,  to  the  most  vigilant  anxiety  and  solicitude.  But 
extremes,"  he  says,  "  in  this  case,  as  in  most  others,  are  inap- 
plicable to  practice ;  the  first  extreme  would  seldom  enable 

the  bailee  to  perform  the  condition,  and  the  second  ought 



1  See  post,  note  to  $  19.  3  Jones  on  Bailm.  p.  5. 

2  Jones  on  Bailm.  3.  4  Ibid.  p.  6. 


CH.  I.]  BAILMENTS.  7 

not  in  justice  to  be  demanded  ;  since  it  would  be  harsh  and 
absurd  to  exact  the  same  anxious  care  which  the  greatest 
miser  takes  of  his  treasure,  from  every  man  who  borrows  a 
book  or  a  seal.  The  degrees  of  care  to  be  sought,  then, 
must  lie  somewhere  between  these  extremes ;  and,  by  ob- 
serving the  different  manners  and  characters  of  men,  a  certain 
standard  may  be  found,  which  will  greatly  facilitate  an 
inquiry  ;  for,  although  some  persons  are  excessively  careless, 
and  others  extremely  vigilant,  and  some  through  life,  and 
others  only  at  particular  times,  yet  it  is  perceptible  that 
the  generality  of  rational  persons  use  nearly  the  same  de- 
gree of  diligence  in  the  conduct  of  their  own  affairs.  This 
care,  therefore,  which  every  person  of  common  prudence,  and 
capable  of  governing  a  family r,  takes  of  his  own  concerns,  is 
a  proper  measure  of  that  which  would  uniformly  be  required 
in  performing  every  contract,  if  there  were  not  strong  reasons 
for  exacting"  in  some  of  them  a  greater,  and  permitting  in 
others  a  less  degree  of  attention.  Here,  then,"  says  Sir 
William  Jones,  "  we  may  fix  a  constant  determinate  point, 
on  each  side  of  which  there  is  a  series  consisting  of  variable 
terms,  tending  indefinitely  towards  the  above-mentioned 
extremes,  in  proportion  as  the  case  admits  of  indulgence  or 
demands  rigor;  if  the  construction  be  favorable,  a  degree  of 
care  less  than  the  standard  will  be  sufficient ;  if  rigorous,  a 
degree  more  will  be  required ;  and  in  the  first  case,  the 
measure  will  be  that  care  which  every  man  of  common,  sense, 
though  absent  and  inattentive,  applies  to  his  own  affairs ;  in 
the  second,  the  measure  will  be  that  attention  which  a  man 
remarkably  exact  and  thoughtful  gives  to  the  security  of  his 
personal  property.1 

§  7.  Story  thinks,  that  although  it  may  not  be  possible  to 
lay  down  any  very  exact  rule,  applicable  to  all  times  and 
all  circumstances ;  yet  that  may  be  said  to  be  common  or 
ordinary  diligence  in  the  sense  of  the  law,  which  men  of 

1  Jones  on  Bailm.  5,  6. 


8  LAW  OP   CARRIERS.  [CH.  I. 

common  prudence  generally  exercise  about  their  own  affairs, 
in  the  age  and  country  in  which  they  live  ;  and  this  he 
affirms  to  be  more  a  matter  of  fact  than  of  law ; 1  and  the 
later  decisions  hold,  that  it  must  often  be  left  to  the  jury 
upon  the  nature  of  the  subject-matter,  and  the  particular 
circumstances  of  each  case.2  The  variable  character  of  the 
standard  of  diligence  is  very  happily  illustrated  by  Story. 
In  one  country,  or  in  one  age,  says  he,  acts  may  be  deemed 
negligent,  which,  at  another  time,  or  in  another  country, 
may  justly  be  deemed  an  exercise  of  ordinary  diligence,  and 
it  is  important,  says  he,  to  attend  to  this  consideration,  not 
merely  to  deduce  the  implied  obligations  of  a  party  in  a 
given  case,  but  also  to  possess  ourselves  of  the  true  measure 
by  which  to  fix  the  application  of  the  general  rule.  Thus, 
in  times  of  primitive  or  pastoral  simplicity,  when  it  was 
customary  to  leave  flocks  to  roam  at  large  by  night,  it  would 
not  be  want  of  ordinary  diligence  to  allow  a  neighbor's  flock 
which  is  deposited  with  us,  to  roam  in  the  same  manner. 
But,  if  the  general  custom  were,  at  night,  to  pen  them  in  a 
fold,  it  would  doubtless  be  a  want  of  such  diligence,  not 
to  do  the  same  with  them.  In  many -parts  of  America, 
especially  in  the  interior,  where  there  are,  comparatively 
speaking,  few  temptations  to  theft,  it  is  quite  usual  to  leave 
barns,  in  which  horses  and  other  cattle  are  kept,  without 
being  locked  by  night.  But  in  cities,  where  the  danger  is 
much  greater,  and  the  temptations  more  pressing,  it  would  be 
deemed  a  great  want  of  caution  to  do  the  same.  If  a  man 
were  to  leave  his  friend's  horse  in  his  field,  or  in  his  barn, 
all  night,  in  many  country  towns,  and  the  horse  were  stolen, 
it  would  not  be  imagined  that  any  responsibility  was  incur- 
red. But  if,  in  a  large  city,  the  same  want  of  precaution 
were  shown,  it  would  be  deemed,  in  many  cases,  gross 

1  Story  on  Bailm.  §11;  and  see  Vaughn  v.  Menlove,  3.  Bing.  N. 
Cases,  468. 

2  Per  Shaw,  C.  J.,  in  Whitney  v.  Lee,  8  Met.  (Mass.)  R.  91 ;  and  see 
Cairns  v.  Mills,  8  M.  &  Welsh.  R.  238. 


CH.  I.]  BAILMENTS.  9 

neglect.  If  robbers  were  known  to  frequent  a  particular 
district  of  country,  much  more  precaution  would  be  required 
than  in  districts  where  robberies  were  of  very  rare  occur- 
rence. What,  then,  is  usually  done  in  a  country,  in  respect 
to  things  of  a  like  nature,  whether  it  be  more  or  less  in  point 
of  diligence,  than  what  is  exacted  in  another  country,  is  in 
fact  the  general  measure  of  diligence.1 

§  8.  The  customs  of  trade  and  the  course  of  business  also 
have  an  important  influence.  If,  in  the  course  of  a  particu- 
lar trade,  particular  goods,  as  for  instance,  coals,  are  usually 
left  on  a  wharf  without  any  guard  or  protection  during  the 
night,  and  they  are  stolen,  the  wharfinger,  or  other  person 
having  the  custody,  might  not  be  responsible  for  the  loss, 
although,  for  a  like  loss  of  other  goods  not  falling  under  a 
like  predicament,  he  might  be  responsible.  If  a  chaise  were 
left  during  the  night  under  an  open  shed,  and  were  stolen, 
the  bailee  might  not  be  liable  for  the  loss,  if  such  was  the 
usual  practice  of  the  place  ;  and  yet  he  would  be,  if  other 
precautions  were  'usually  taken.  In  short,  diligence  is 
usually  proportioned  to  the  degree  of  danger  of  loss,  and 
that  danger  is,  in  different  states  of  society,  compounded 
of  very  different  elements.2  What  constitutes  ordinary  dili- 
gence may  also  be  materially  affected  by  the  nature,  bulk, 
and  value  of  the  articles.  A  man  would  not  be  expected 
to  take  the  same  care  of  a  bag  of  oats  as  of  a  bag  of  gold  ; 
of  a  bale  of  cotton  as  of  a  box  of  jewelry  ;  of  a  load  of 
wood  as  of  a  package  of  paintings  ;  of  a  block  of  marble  as 
of  a  sculptured  statue.  The  value,  especially,  is  an  ingre- 
dient to  be  taken  into  consideration  upon  every  question  of 
negligence  ;  for,  that  may  be  gross  negligence  in  the  case  of 
a  parcel  of  extraordinary  value,  which,  in  the  case  of  a  com- 
mon parcel,  would  not  be  so.3 

1  Story  on  Bailra.  §  11,  12,  13,  14,  15. 

2  See  Gordon  v.  Hutchinson,  1  Watts  &  S.  (Penn.)  R.  285. 

3  Story  on  Bailm.  §  13,  14,  15. 


10  LAW  OF   CARRIERS.  [CH.  I. 

§  9.  The  fixed  mode  or  standard  of  diligence  Sir  William 
Jones  calls  ordinary.  The  degrees  on  each  side  of  this 
standard,  need  not,  he  says,  be  distinguished  by  any  precise 
denomination  ;  the  first  may  be  called  less,  and  the  second 
more  than  ordinary  diligence.  Then  he  proceeds  to  say, 
that  just  in  the  same  manner,  there  are  infinite  shades  of 
default  or  neglect,  from  the  slightest  inattention,  or  moment- 
ary absence  of  mind,  to  the  most  reprehensible  supineness 
and  stupidity ;  and  these  are  the  omissions  of  the  before- 
mentioned  degrees  of  diligence,  and  are  exactly  correspond- 
ent with  them.1 

§  10.  The  three  degrees  of  negligence  are  thus  distin- 
guished, both  in  the  Civil  and  the  Common  Law,  by  name  : 
1.  Gross  neglect,  lata  culpa,  as  the  Roman  lawyers  call  it, 
is  in  practice  considered  as  equivalent  to  fraud ;  and  con- 
sists, according  to  Sir  William  Jones,  in  the  omission  of  that 
care  which  even  inattentive  and  thoughtless  men  never  fail  to 
take  of  their  own  property  ;  this  fault,  the  best  interpreters 
of  the  Civil  Law  hold  to  be  clearly  a  violation  of  good  faith.2 

1  Jones  on  Bailm.  7,  8  ;  Story  on  Bailm.  §  17. 

2  Jones  on  Bailm.  21 ;  Story  on  Bailm.  $  18.  Story  remarks,  that  in 
various  passages  of  the  Essay  of  Sir  William  Jones,  it  seems  to  be  assumed, 
that,  in  the  Common  Law,  as  in  the  Civil  Law,  gross  negligence  and  fraud 
are  equivalent.     Thus,  he  observes,  ordinary  negligence  is  spoken  of  as 
"  a  mean  between  fraud  and  accident."  (p.  8)  ;  gross  negligence  as  "in- 
consistent with  good  faith."  (pp.   10,  46,   119)  ;   and  a  bailee  without 
reward,  as  being  "  answerable  only  for  fraud,  or  for  gross  negligence, 
which  is  considered  evidence  of  it."  (p.  46.)     But  this  doctrine  is  not 
warranted  by  the  Common  Law  authorities.     One  case  opposed  to  it  is 
put  by  Sir  W.  Jones  himself.     If,  he  says,  (p.  57,)  a  depositor  commits  a 
gross  neglect  in  regard  to  his  own  goods,  as  well  as  those  which  are 
bailed,  by  which  both  are  lost  or  damaged,  he  cannot  be  said  to  have 
violated  good  faith,  and  the  bailor  must  impute  to  his  own  folly  the  confi- 
dence which  he  reposed  in  so  improvident  and  thoughtless  a  person.     So, 
where  a  cartoon  was  left  in  the  hands  of  an  auctioneer,  without  any  par- 
ticular agreement  to  take  care  of  it,  or  re-deliver  it  safe,  and  without  any 
agreement  for  a  reward,  and  it  appeared   that  the  painting  was  upon 
paper  pasted  on  canvass,  and  that  the  bailee  kept  it  in  a  room  next  to  a 


CH.  I.]  BAILMENTS.  11 

2.  Ordinary  neglect,  levis  culpa,  is  the  want  of  that  diligence 
which  the  generality  of  mankind  use  in  their  own  concerns, 
that  is,  of  ordinary  care.1  3.  Slight  neglect,  levissama  culpa, 
is  the  omission  of  that  care  which  very  attentive  and  vigilant 
persons  take  of  their  own  goods,  or,  in  other  words,  of  very 
exact  diligence.2 

§  11.  Such,  then,  are  the  nature  and  various  degrees  of 
negligence,  and  of  diligence,  and  the  next  question  is  in 
what  manner  the  law  applies  them.  The  answer  is  as  short 


stable  in  which  there  was  a  wall,  which  had  made  it  damp  and  peel  —  it 
was  held  gross  neglect,  and  the  bailee  was  held  responsible,  although 
there  was  no  imputation  of  fraud.  These  cases  show  that  gross  negli- 
gence is  not  equivalent  to  fraud,  according  to  the  Common  Law  authori- 
ties. On  the  contrary,  gross  negligence  is,  or  at  least  may  be,  entirely 
consistent  with  good  faith  and  honesty  of  intention  ;  and  to  confound  it 
with  fraud,  would  be  most  mischievous,  for  then,  unless  a  jury  should 
believe  the  party  guilty  of  fraud,  no  laches  would  come  up  to  the  legal 
notion  of  gross  negligence,  so  as  to  entitle  the  sufferer  by  the  loss  to 
recover.  A  man  may  leave  a  casket  of  jewels  or  a  purse  of  gold  upon 
the  table  of  a  public  room  at  an  inn,  or  may  leave  a  package  of  bank  bills 
in  a  great  coat  in  the  common  entry  of  an  inn,  from  pure  thoughtlessness ; 
and  a  jury  might  be  well  satisfied  that  it  was  gross  negligence.  But  if 
fraud  were  a  necessary  ingredient,  the  very  statement  of  the  case  would 
negative  a  right  of  recovery.  Besides,  if  gross  negligence  were  equivalent 
to  fraud,  there  could  be  no  defence  set  up  by  the  bailee,  founded  either  on 
his  own  conduct  in  respect  to  his  own  goods,  or  on  a  special  contract  not 
to  be  liable  for  gross  negligence.  But  there  is  no  principle  in  our  law, 
that  would  prevent  a  depositary  from  contracting  not  to  be  liable  for  any 
degree  of  mere  negligence.  Story  on  Bailm.  §  20,  et  seq.  With  respect 
to  common  carriers,  however,  fraud  may  be  presumed,  as  will  be  shown, 
post.  Gross  negligence  certainly  approximates  to  dolus  malus,  and  is  tan- 
tamount, in  the  mischief  it  produces,  to  a  breach  of  good  faith.  It  bears 
so  near  a  resemblance  to  fraud,  as  to  be  equivalent  to  it  in  its  effect  upon 
contracts,  though,  by  the  Common  Law,  it  may  not  be  fraud  by  inference, 
but  a  matter  of  fact  for  the  jury.  2  Kent,  Coram.  559  ;  Foster  v.  Essex 
Bank,  17  Mass.  R.  479 ;  Wilson  v.  York  &  Md.  Railr.  Co.  11  Gill  & 
Johns.  (Md.)  R.  58.  And  see  post,  $  22,  et  seq. 

1  Jones  on  Bailm.  22  ;  Story  on  Bailm.  §  18. 

2  Ibid. 


12  LAW   OF   CARRIERS.  [CH.  I. 

and  simple  as  it  is  rational.  When  the  bailment  is  for  the 
sole  benefit  of  the  bailor,  the  law  requires  only  slight  dili- 
gence on  the  part  of  the  bailee,  and  he  is  consequently 
responsible  for  nothing  less  than  gross  neglect.  When  the 
bailment  is  for  the  sole  benefit  of  the  bailee,  an  extraordinary 
degree  of  care  is  demanded,  and  the  bailee  is  therefore 
responsible  for  slight  neglect.  When  the  bailment  is  recip- 
rocally beneficial  to  both  parties  (as  in  the  case  of  the  car- 
riage of  goods  for  hire,)  such  care  is  exacted  of  the  bailee 
as  every  prudent  man  commonly  takes  of  his  own  goods ; 
or,  in  other  words,  the  law  requires  ordinary  diligence  on 
the  part  of  the  bailee,  and  makes  him  responsible  for  ordi- 
nary neglect.  Such  are  the  rules  recognized  by  the  Common 
Law  ;  a  like  division  of  the  degrees  of  responsibility  is  to  be 
found  in  the  Civil  Law  ;  and  the  same  rules  are  found  in  the 
French  and  Scotch  law,  and  may  be  deemed  indeed  the 
general  result  of  the  law  of  Continental  Europe.1  But  it  is 
often  difficult  to  mark  the  lines  of  distinction  between  the 
different  degrees  of  negligence,  so  as  to  show  precisely  where 
the  one  ends  and  the  other  begins  ;  and,  therefore,  by  the 
Common  Law,  it  is  left  to  the  jury,  upon  the  nature  of  the 
subject-matter,  and  the  particular  circumstances  of  each  case, 
to  say  whether  the  particular  case  is  within  the  one  or  the 
other.2  Every  person  who  is  a  bailee,  whether  for  hire  or 
not,  is  bound  to  take  proper  and  prudent  care  of  that  which 
is  committed  to  him  ;  and  the  Courts,  in  modern  times,  have 
acknowledged  the  difficulty  in  defining  the  difference  between 
one  of  the  sorts  of  the  negligence  designated  by  the  epithets 
of  the  Civil  Law  and  another  3 ;  and  there  is  clearly  a  want  of 
precision  in  the  use  of  the  term  negligence,  which,  per  se  is 

1  Jones  on  Bailm.  22,  23,  24  ;  Story  on  Bailm.  §  23,  24  ;  Coggs  v.  Ber- 
nard, 2  Ld.  Raym.  R.  909,  and  Appx. ;  Pothier,  Traite  de  Depot,  n.  23 ; 
Pothier,  Oblig.  P.  1,  ch.  2,  art.  1,  §  1,  n.  141 ;  1  Bell,  Comm.  453,  (5th 
ed.)  ;  Ersk.  Inst.  448 ;  Heinec.  Elem.  Jur.  Inst.  Lib.  3,  tit.  15,  §  12. 

2  See  Opinion  of  Shaw,  C.  J.,  in  Whitney  v.  Lee,  8  Met.  (Mass.)  R. 
91.     And  see  ante,  §  7,  8. 

3  See  post,  §  22,  23,  and  §  48  -  52. 


CH.  I.]  BAILMENTS.  13 

insufficient  to  express  the  distinction  between  negligence  in 
law  and  negligence  in  fact.1  From  these  principles  it  however 
follows,  that  bailees  in  general  are  not  responsible  for  losses 
resulting  from  unavoidable  accident,  or  from  irresistible  force  ; 
and  yet  (as  will  be  shown,  in  treating  of  the  particular  liability 
of  carriers)  bailees  may  become  so  responsible,  both  by  spe- 
cial contract,  and  by  the  special  policy  of  the  law. 

§  12.  It  may  here  be  proper  to  notice  the  distinction 
between  negligence  and  misfeasance.  It  seems  to  be  this ; 
that  the  former  takes  place  in  the  course  of  performing  the 
contract,  the  latter  in  an  act  done  in  direct  contravention  of 
it,  by  which  its  performance  is  prevented.  An  instance  of 
the  latter  is,  where  the  defendants  received  a  parcel,  and 
contracted  to  send  it  by  the  mail,  and  it  was  sent  in  a  dif- 
ferent manner  (by  another  coach,)  and  was  lost.  The  Court 
held,  that  if  the  defendants  had  forwarded  the  parcel  by  the 
mail,  in  pursuance  of  the  contract,  they  would  not  have  been 
liable  for  the  loss,  but  as  they  had  acted  in  direct  contraven- 
tion of  it,  it  was  a  misfeasance?  If  a  gratuitous  bailee  enters 
upon  the  performance  of  the  safe  keeping  of  the  thing 
entrusted  to  him,  and  in  the  execution  of  it,  does  it  amiss, 
through  the  want  of  due  care,  by  which  damage  ensues  to 
the  bailor,  it  is  a  misfeasance  for  which  an  action  will  lie  ; 
but  if  a  person  engages,  that  he  will  gratuitously  take  charge 
of  a  thing,  and  then  wholly  omits  to  enter  upon  the  execu- 
tion of  his  promise,  it  is  a  nonfeasance  for  which,  at  Com- 
mon Law,  no  action  will  lie.3 

§  13.  As  before  mentioned.4  Lord  Holt,  in  Coggs  v.  Ber- 


1  See  post,  %  22,  23,  and  §  48-52. 

2  Sleat  v.  Fagg,  5  B.  &  Aid.  R.  342.    See  also  Ellis  v.  Turner,  8  T.  R. 
531 ;  Garnett  v.  Willan,  5  B.  &  Aid.  R.  53. 

3  Thome  v.  Deas,  4  Johns.  (N.  Y.)  R.  85.     And  see  post,  note  to 
$  19  ;  and  for  a  more  full  explanation  of  the  distinction  between  negli- 
gence and  misfeasance,  see  post,  §  269-274. 

4  See  ante  §  2. 

2 


14  LAW   OF   CARRIERS.  [CH.  I. 

nard,1  has  traced  with  much  attention  the  different  species  of 
bailment ;  which,  it  will  at  once  be  perceived,  are  derived 
from  the  Civil  Law,  to  which  Bracton  had  recourse  in  ex- 
pounding the  law  of  bailment ;  2  and  by  the  elaborate  opinion 
of  that  learned  Judge,  in  the  case  just  referred  to,  and  by  the 
Essay  of  Sir  William  Jones,  the  different  sorts  of  bailment 
in  the  Civil  Law  have  become  transferred  to  the  Common 
Law.3  The  division  of  bailments  by  the  above  mentioned 
Judge,  is  into  six  sorts,  but  this  division  has  since  been  con- 
sidered somewhat  inaccurate,  because  in  fact  his  fifth  division 
is  no  more  than  a  branch  of  his  third  ;  and  he  might,  with 
equal  reason,  have  added  a  seventh,  since  the  fifth  is  capable 
of  another  subdivision.4  The  Common  Law,  as  now  under- 
stood and  applied,  recognizes  but  five  general  species  of  bail- 
ment, which  may  be  thus  enumerated  and  defined,  with  all 
the  Latin  names,  one  or  two  of  which  Lord  Holt  has  omitted  : 
1.  Depositum,  or  Deposit,  which  is  a  naked  bailment,  without 
reward,  of  goods  to  be  kept  by  the  bailor,  and  to  be  returned 
when  the  bailor  shall  require  it.  The  appellation  and  the 
definition  are  both  derived  from  the  Civil  Law.  Depositum 
est,  quod  custodiendum  alicui  datum  est  (Dig.  Lib.  16,  tit.  4. 
1.  1.)  2.  Mandatum,  or  Mandate,  which  is  defined  to  be  a 
bailment  of  goods  without  reward,  to  have  some  act  per- 
formed about  them,  or  to  be  carried  from  place  to  place. 
This  appellation  is  also  derived  from  the  Civil  Law.  Man- 


1  Coggs  v.  Bernard,  2  Ld.  Raym.  R.  909,  and  Appendix. 

2  See  Bracton  and  the  Civil  Law  referred  to  by  Lord  Holt  in  Coggs  v. 
Bernard,  ub.  supra.     See  also  Wood,  Civil  Law,  235  ;  1  Domat,   B.,  1, 
tit.  4,  §  1  ;  1  Bell,  Comm.  452,  (5th  ed.) ;  2  Kent,  Comra.  585 ;  Story  on 
Bailm.  $  8. 

3  Story  on  Bailm.  §  8;  Jones  on  Bailm.  36,  117.     Lord  Holt  presided 
as  lately  as  the  second  year  of  Queen  Anne  ;  and  a  point  which  the  first 
elements  of  Roman  Law  have  so  fully  decided,  that  no  Court  of  judicature 
on  the  continent  would  suffer  it  to  be  debated,  was  thought  in  England  to 
deserve,  what  it  certainly  received,  very  great  consideration.  Jones  on  Bailm. 
58,  referring  to  the  opinion  of  Lord  Holt  in  Coggs  v.  Bernard,  ub.  sup. 

4  Jones  on  Bailm.  36. 


CH.  I.]  BAILMENTS.  15 

dantis  tantum  gratia  intervenit  mandatum,  is  the  language 
of  the  Institutes  ; l  Mandatum,  nisi  gratuitum,  nullum  est,  is 
that  of  the  Pandects.2  3.  Commodatum,  or  loan  for  use,  when 
goods  are  bailed  without  pay,  to  be  used  for  a  certain  time  by 
the  bailee.3  It  differs  from  what  is  called  in  the  Civil  Law  a 
Mutuum  in  this,  that  in  a  Commodatum  the  goods  are  lent  to 
be  specifically  returned  ;  in  a  Mutuum  the  goods  are  to  be 
consumed,  and  are  to  be  repaid  in  property  of  the  same  kind. 
Thus,  corn  or  wine,  delivered  to  some  one  to  be  consumed, 
and  to  be  repaid  in  kind,  is  a  case  of  Mutuum  ;  but  if  a  horse 
be  gratuitously  lent  for  a  journey,  it  is  a  case  of  Commodatum. 
4.  Pignori  acceptum,  when  a  thing  is  bailed  by  a  debtor  to  his 
creditor,  in  pledge  or  pawn,  as  security  for  some  debt  or 
engagement.  5.  Locatum,  or  hiring,  which  is  always  for  a 
reward ;  and  this  bailment  is  either  first,  Locatio  rei,  by  which 
the  hirer  gains  the  temporary  use  of  the  thing,  or  secondly, 
Locatio  operis  faciendi,  when  work  and  tabor,  or  care  and 
pains,  are  to  be  performed  or  bestowed  on  the  thing  delivered  ; 
or  thirdly,  Locatio  operis  mercium  vehendarum,  when  goods 
are  bailed  for  the  purpose  of  being  carried  from  place  to  place 
for  hire,  either  to  a  public  carrier,  or  to  a  private  person. 

§  14.  The  above  division  of  bailments,  and  the  definitions 
of  each  sort  are  borrowed  from  the  Essay  of  Sir  William 
Jones  on  Bailments,  and  from  the  Commentaries  on  the  same 
subject  of  the  late  Mr.  Justice  Story.4  The  latter  sort,  Lo- 


1  Inst.  Lib.  3,  tit.  27,  §  1. 

2  Dig.  Lib.  17,  tit.  1  ;  Story  on  Bailm.,  notes  4  and  5  to  §  5. 

3  The  same  definition  is  given  in  the  Civil  Law.     Story  on  Bailm.  $  6. 

4  See  Jones  on  Bailm.  36,  and  Story  on  Bailm.  $  4,  5,  6,  7.     Lord 
Chief  Justice  Holt's  arrangement  of  bailments  into  six  classes  is  as  fol- 
lows.    1.  Depositum  :  A  bare  naked  bailment  of  goods  delivered  by  one 
man  to  another  to  keep  for  the  use  of  the  bailor.     2.  Commodatum  : 
When  goods  or  chattels  that  are  useful,  are  lent  to  a  friend  gratis,  to  be 
used  by  him.     3.  Locatio  rei :  Where  goods  are  lent  to  the  bailee  to  be 
used  by  him  for  hire.     4.  Vadium  or  Pawn.     5.  Locatio  operis  faciendi : 
Where  goods  are  delivered  to  be  carried,  or  something  is  to  be  done  about 


16  LAW   OF   CARRIERS.  [CH.  I. 

catum  or  hiring,  which  is  subdivided  by  the  former  writer, 
as  above  given,  into  three  sorts,  the  latter  writer,  following 
the  Civil  Law,  has  subdivided  into  four  sorts,  thus  :  1.  The 


them,  for  a  reward  to  be  paid  to  the  bailee.  6.  Mandatum  :  A  delivery 
of  goods  to  somebody,  who  is  to  carry  them,  or  do  something  about  them 
gratis.  Sir  William  Jones  objects  to  this  arrangement,  because  the  fifth 
class  (as  he  says)  is  no  more  than  a  branch  of  the  third,  and  because  a 
7th  might  have  been  added,  since  the  5th  (and  he  might  have  said  the  6th 
also)  is  capable  of  another  subdivision.  But  Mr.  Smith,  in  his  note  to 
Coggs  v.  Bernard,  has  refuted  this  opinion  :  "  For,  there  exists,"  he  says, 
"  between  them  this  essential  difference,  viz.,  that  in  cases  falling  under 
the  third  class,  or  locatio  rei,  the  reward  is  paid  by  the  bailee  to  the  bailor  ; 
whereas,  in  cases  falling  under  the  fifth  class,  or  locatio  operis  faciendi, 
the  reward  is  always  paid  by  the  bailor  to  the  bailee.  It  is  true,  that  in 
Latin  both  classes  are  described  by  the  word  locatio,  which  probably  gave 
rise  to  Sir  William  Jones's  opinion,  that  both  ought  to  be  included  under 
the  same  head  ;  but  then  in  the  third  class,  locatio  rei,  the  word  locatio  is 
used  to  describe  a  mode  of  bailment,  viz.,  by  the  hiring  of  the  thing 
bailed;  whereas,  in  the  fifth  class,  locatio  operis  faciendi,  the  same  word 
locatio  is  used,  not  to  describe  any  mode  of  bailment,  but  to  signify  the 
hiring  of  the  man's  labor  who  is  to  work  upon  the  thing  bailed ;  for  as  to 
the  thing  bailed,  that  is  not  hired  at  all,  as  it  is  in  cases  falling  within  the 
third  class.  If,  indeed,  Lord  Holt  had  been  enumerating  the  different 
sorts  of  hirings,  not  of  bailments,  he  would,  no  doubt,  like  the  civilians, 
have  classified  both  locatio  rei,  and  locatio  operis,  under  the  word  hiring  ; 
since  in  one  case  goods  are  hired,  and  in  the  other  labor.  But  he  was 
making  out  a  classification,  not  of  hirings,  but  of  bailments  ;  and  since  in 
cases  of  localio  rei  there  is  a  hiring  of  the  thing  bailed,  and  in  cases  of 
locatio  operis  no  hiring  of  the  thing  bailed,  it  was  impossible  to  place,  with 
any  degree  of  propriety,  two  sorts  of  bailments  under  the  same  class,  one 
of  which  is,  and  the  other  which  is  not,  a  bailment  by  way  of  hiring.  As 
to  the  objection  that  Lord  Holt's  fifth  class  of  bailments  is  capable  of 
another  subdivision,  there  is  no  doubt  but  that  it  may  be  split,  not  only,  as 
Sir  William  Jones  suggests,  into  locatio  operis  faciendi  (where  work  is  to 
be  done  upon  the  goods,)  and  locatio  operis  mercium  vehendarum  (where 
they  are  to  be  carried,)  but  into  as  many  different  subdivisions  as  there  are 
different  modes  of  employing  labor  upon  goods  ;  and,  in  point  of  fact,  the 
civilians,  in  their  division  of  hirings,  enumerated  another  class,  viz.,  locatio 
custodia,  or  the  hiring  of  care  to  be  bestowed  in  guarding  a  thing  bailed, 
which  is  omitted  by  Sir  William  Jones.  For  these  reasons  it  is  submitted, 
that  Lord  Holt's  classification  is  the  correct  one."  1  Smith's  Leading 
Cases,  98.  And  see  Eng.  Monthly  Law  Mag.  for  April,  1839. 


CH.  I.]  BAILMENTS.  17 

hiring  of  a  thing  for  use  (locatio  ra.)  2.  The  hiring  of  work 
and  labor  (locatio  operis  faciendi.)  3.  The  hiring  of  care 
and  services  to  be  performed  or  bestowed  on  the  thing  de- 
livered (locatio  custodite.)  4.  The  hiring  of  the  carriage  of 
goods  (locatio  operis  mercium  vehendarum)  from  one  place 
to  another.  The  three  last,  says  the  learned  American  Com- 
mentator, are  but  subdivisions  of  the  general  head  of  hire  of 
labor  and  services.1 

§  15.  But  the  most  general  and  simple  division  of  bail- 
ments, and  one  which  includes  all  the  above-mentioned 
sorts,  is  into  three  kinds.  First,  those  in  which  the  trust  is 
exclusively  for  the  benefit  of  the  bailor.  Secondly,  those  in 
which  the  trust  is  exclusively  for  the  benefit  of  the  bailee. 
Thirdly,  those  in  which  the  trust  is  for  the  benefit  of  both 
parties.  The  first  embraces  deposits  and  mandates;  the 
second,  gratuitous  loans  for  use  ;  the  third,  pledges  or 
pawns,  and  hiring  and  letting  to  hire.2  The  first  of  these 
three  general  divisions  includes  the  carriage  of  goods  without 
hire  ;  and  the  last  the  carriage  of  goods  for  hire,  as  was 
stated  in  the  commencement  of  the  present  chapter.3  The 
carriage  of  goods  without  hire,  will  be  the  subject  of  the 
following  chapter. 

§  16.  In  the  conclusion  of  the  present  chapter,  it  may  be 
stated,  that  the  following  chapters  will  render  obvious  the 
truth  of  the  general  remark,  equally  applicable  in  our  coun- 
try, made  by  Sir  William  Jones,  in  the  concluding  portion 
of  his  Essay  on  the  Law  of  Bailments,  viz.  :  "  All  the  pre- 
ceding rules  and  propositions  may  be  diversified  to  infinity 
by  the  circumstances  of  every  particular  case  ;  on  which 
circumstances  it  is  on  the  continent,  the  province  of  a  Judge 


1  Story  on  Bailm.  $  8. 

2  Story  on  Bailm.  §  3  ;  and  see  English  Monthly  Law  Mag.  for  April, 
1839,  p.  216. 

3  See  ante,  §  1. 

2* 


18  LAW   OF   CARRIERS.  [CH.  I. 

appointed  by  the  sovereign,  and  in  England,  of  a  jury  freely 
chosen  by  the  parties,  finally  to  decide."  l 


1  Jones  on  Bailm.  122  ;  and  see  Ante,  fy  7,  8, 11.  "  There  is  no  time," 
it  has  with  truth  been  said,  "  when  the  law  is  stationary  and  stable  ;  but 
it  is  kept  in  perpetual  movement  by  the  varying  condition  of  the  nation, 
and,  therefore,  the  only  way  in  which  the  spirit  of  -the  law  can  be  seized, 
is  to  study  it  historically,  to  begin  with  the  custom  in  its  cradle,  and  to 
follow  it  through  all  its  changes  down  to  the  existing  epoch.  To  borrow 
an  illustration  from  another  science,  law  not  being  a  fixed  quantity,  but 
variable  according  to  a  certain  rule,  it  becomes  necessary  to  ascertain  what, 
in  mathematical  language,  may  be  called  its  fluxions,  the  formula  of  its 
variation.  It  is  history  only  that  can  furnish  this  calculus,  which  is  the 
basis  of  all  true  and  just  science  in  law.  Without  this  knowledge,  a  jurist 
may  repeat  the  words,  but  can  never  penetrate  the  living  spirit  of  the  law." 
See  article  in  5th  vol.  of  American  Jurist,  p.  23,  entitled,  "  Written  and 
Unwritten  Systems  of  Laws." 


H.  II.]          CARRIERS  WITHOUT  HIRE.  19 


CHAPTER  II. 

OF   CARRIERS   WITHOUT  HIRE. 

§  17.  THE  law,  then,  imposes  upon  a  carrier  without  hire, 
or  the  person  who  undertakes  to  carry  goods  for  another 
gratuitously  (the  mandatary,)1  the  obligation  only  of  slight 
diligence,  and  renders  him  liable  only  for  gross  negligence.2 
It  is  of  the  essence  of  the  contract  of  mandate,  that  it  be 
gratuitous,  for  if  any  compensation  is  to  be  paid,  it  becomes 
then  the  contract  for  hire.  Mandatum,  nisi  gratuitum,  nul- 
lum  esse  ;  and  in  this  particular,  it  matters  not  whether  the 
compensation  is  express  or  implied  ;  nor  whether  certain  or 
uncertain  in  amount.3 

§  18.  The  great  leading  case  in  support  of  the  above 
proposition  respecting  the  responsibility  of  a  carrier  without 
hire,  is  the  case  of  Coggs  v.  Bernard.4  In  this  case  the 


1  See  ante,  §  1,  13.     And  see  respecting  the  general  subject  of  Man- 
dates, Chap.  III.  of  Story  on  Bailments. 

2  See  Ante,  §  10,  11. 

3  Story  on  Bailm.  $  153,  and  the  authority  of  the  Dig.  and  of  Pothier, 
Pand.  their  cited.     If  there  is  a  mere  honorary  payment,  not  as  a  compen- 
sation, but  as  a  mark  of  respect  and  favor,  this,  by  the  Civil  Law  authori- 
ties, is  still  a  mandate.     In  England',  counsel  are  understood  not  to  be  at 
liberty  to  make  any  pecuniary  charge  for  their  services,  for  advice,  and 
the  compensation   given  is  deemed  a  gratuity ;  and  their  employment, 
therefore,  in  the  Civil  Law,  would  be  called  a  mandate.     Story,  ub.  sup. 
In  a  case  where  the  defendant  received  hops  from  the  plaintiff  for  the  pur- 
pose of  being  carried  for  hire,  and  kept  them  for  the  plaintiff  in  a  ware- 
house for  thirteen  months,  and  for  that  time  he  had  warehouses  which 
before  had  belonged  to  another,  but  had  not  made  any  charge  to  the  plain- 
tiff for  warehousing ;  it  was  held,  that  he  was  not  a  gratuitous  bailee. 
White  ».  Humphrey,  12  Jur.  417,  Q.  B. 

4  Coggs  v.  Bernard,  2  Ld.  Raym.  R.  909,  and  Appendix. 


20  LAW   OF   CARRIERS.  [CH.  II. 

defendant  undertook  to  remove  several  casks  of  brandy  from 
one  cellar  to  another,  and  there  lay  them  down  safely,  but 
managed  so  negligently,  that  one  of  the  casks  was  staved. 
After  the  general  issue  joined,  and  a  verdict  for  the  plaintiff, 
a  motion  was  made  in  arrest  of  judgment,  on  the  irrelevancy 
of  the  declaration,  in  which  it  was  neither  alleged,  that  the 
defendant  was  to  have  any  recompense  for  his  pains,  nor  that 
he  was  a  common  porter.  But  the  Court  were  unanimously  of 
opinion,  that  the  action  lay,  and  the  elaborate  judgment  of 
Lord  Chief  Justice  Holt,  has  rendered  the  case  one  of  the 
most  celebrated  ever  decided  in  Westminster  Hall. 

§  19.  By  the  argument  of  Lord  Holt  in  the  above  case,  if 
the  agreement  had  been  executory,  as  if  the  defendant  had 
assumed  to  carry  the  goods  in  question,  and  had  failed  to  do 
so,  no  action  could  have  been  sustained.  It  would  have 
been  like  the  case  where  a  man  promised  another  to  build 
him  a  house  by  such  a  day  and  failed  in  the  performance  of 
the  promise,  in  which  case  it  was  adjudged  (11  Hen.  4,  33,) 
that  an  action  would  not  lie.  But  in  the  case  in  question,  the 
defendant  actually  entered  upon  the  undertaking  according 
to  his  promise,  and  therefore  was  liable  to  an  action  for  the 
deceit  put  upon  the  plaintiff  who  trusted  him ;  for,  although 
he  was  not  bound  to  enter  upon  the  trust,  yet  if  he  do  enter 
upon  it,  he  must  take  care  not  to  miscarry,  at  least,  by  any 
mismanagement  of  his  own.  But  should  a  person  have  run 
upon  the  defendant  in  the  street,  and  thrown  down  the  cask 
of  brandy,  or  had  privately  pierced  it,  it  would  be  otherwise, 
because  the  defendant  had  no  reward.  In  short,  although  a 
party  is  to  receive  no  benefit  or  reward,  if  he  assumes  a 
trust,  he  is  under  obligation  to  perform  it.1 


1  In  an  article  in  the  American  Jurist  for  January,  1837,  (vol.  16,  p.  253 
to  285,)  written  by  the  late  Mr.  J.  B.  Wallace,  of  the  Philadelphia  Bar, 
it  is  ably  contended,  that,  in  mandate  and  in  deposit,  there  is  no  contract  at 
all,  expressed  or  implied  ;  his  argument  being,  that  every  contract  presup- 
poses a  sufficient  consideration  in  point  of  law,  to  sustain  it,  and  that,  in 


CH.  n.]  CARRIERS   WITHOUT  HIRE.  21 

§  20.  The  point  which  the  decision  in  Coggs  v.  Bernard 
directly  involves,  viz.,  that  if  a  man  undertake  to  carry 
goods  safely,  he  is  responsible  for  damage  sustained  by  them 

the  classes  of  bailment  just  mentioned,  there  is  no  sufficient  consideration 
moving  to  the  bailee,  as  the  bailee  acts  gratuitously.  "It  is  seen,"  says 
he,  "that,  in  pursuance  of  a  most  useful  practical  principle,  no  action  lies 
against  the  mandatary  for  nonfeasance  (there  being  in  legal  contemplation 
no  contract  to  do)  ;  and  it  is  farther  seen,  that  if  the  mandatary  does  un- 
dertake or  begin  the  execution  of  his  trust,  and  does  it  so  negligently  as 
to  injure  the  thing  bailed,  an  action  does  lie  against  him  for  this  misfea- 
sance. But  this  right  of  action  is  not  by  virtue  of  his  contract,  for  no 
contract  exists  after  he  begins  to  do,  more  than  before.  It  rests  on  the 
broad  principles  of  general  justice  ;  it  is  founded  on  the  tort ;  it  arises  not 
ex  contraclu,  nor  even  quasi  ex  contractu,  but  ex  delicto.  It  would  lie 
equally,  if  the  injury  were  done  to  the  thing  bailed,  while  in  the  hands  of 
the  mandatary,  even  before  he  begins  to  execute  the  trust;  though  gener- 
ally this  cannot  practically  be,  as  the  injury  usually  occurs  in  the  execu- 
tion." This  simple  explanation,  says  Mr.  W.,  removes  all  difficulty,  and 
shows,  that  the  form  of  action  is  not  assumpsit  but  case;  and  he  is  of 
opinion,  that,  in  this  view  of  the  matter,  "  there  is  no  inconsistency,  that 
no  principle  is  violated,  and  that  every  thing  is  congruous."  Mr.  Justice 
Story,  in  reply  to  the  acute  reasoning  of  Mr.  W.  says  :  "  It  seems  to  me 
very  clear,  both  upon  principle  and  authority,  that  in  every  case  of  deposit 
and  of  mandate,  there  is  such  a  contract,  founded  on  a  sufficient  considera- 
tion, and  capable  of  being  so  enforced  (that  is  at  law,)  whenever  the  bail- 
ment has  been  executed  by  a  delivery  of  the  thing  to  the  bailee.  In  the 
case  of  a  deposit,  no  one  can  doubt  that  there  is  an  engagement  or  promise 
to  re-deliver  the  thing  to  the  bailor.  The  latter  parts  with  his  possession 
of  it  upon  the  faith  of  the  due  fulfilment  of  that  engagement  or  promise ; 
and  it  cannot  make  any  difference  in  relation  to  the  legal  validity  of  that 
engagement  or  promise,  whether  the  bailee  has  expressly  promised  to 
re-deliver  it  to  the  bailor,  or  whether  it  is  inferred  from  implication  from 
the  acts  and  intentions  of  the  parties.  In  each  case  the  consideration  is 
precisely  the  same.  What  is  the  consideration  ?  It  is  on  the  part  of  the 
bailor  yielding  up  his  present  possession,  custody,  and  care  of  the  thing 
to  the  bailee,  upon  the  faith  of  his  engagement  or  promise  to  re-deliver  it. 
It  is  true,  the  bailee  may  derive  no  benefit  from  the  deposit.  But  that  is 
not  the  only  source  of  legal  considerations.  A  detriment  or  parting  with 
a  present  right,  or  delaying  the  present  use  of  a  right  on  the  part  of  the 
promisee,  is  a  sufficient  consideration  to  support  a  contract  by  the  prom- 
isor, although  the  promisor  derives  no  benefit  whatever  from  it."  See 
note  to  p.  4,  §  2,  of  4th  ed.  of  Story  on  Bailm.  The  authorities  cited  by 


22  LAW    OF    CARRIERS.  [CH.  II. 

in  the  carriage  through  his  neglect,  though  he  was  not  a 
common  carrier,  and  was  to  have  nothing  for  the  carriage, 
is  now  clear  law,  and  forms  a  part  of  a  general  proposition 
in  the  law  of  principal  and  agent,  which  may  be  stated,  it 

the  learned  author,  besides  the  opinion  of  Lord  Holt  in  Coggs  v.  Bernard, 
in  support  of  the  proposition,  that  where  a  gratuitous  undertaking  to 
deliver  a  thing  at  the  request  of  the  owner,  is  entered  upon,  it  becomes  a 
valid  and  obligatory  contract  upon  the  bailee  to  perform  the  duty  of  re- 
delivery,  expressly  or  impliedly  resulting  from  his  engagement,  are 
Comyns'sDig.  Acton  the  Case,  Assumpsit,  B. ;  Williamson  v.  Clements, 

1  Taunt.  R.  523 ;  Lengridge  v.  Dorville,  5  B.  &  Aid.  R.  117  ;  Wheatly 
v.  Law,  Cro.  Jac.  668  ;  S.  C.  Palmer,  R.  281.     This  last  case  was  a 
mandate  of  money,  not  goods,  and  it  was  finally  established,  that  there 
was  a  sufficient  consideration  to  support  the  action  ;  and  the  judgment  was 
affirmed  in  error.     There  are  also  referred  to  the  more  modern  cases  of 
Whitehed  v.  Greetham,  1  McLell.  &  Younge,  R.  205 ;  S.  C.  2  Bing.  R. 
264;  Doorman  v.  Jenkins,  2  Adol.  &  Ell.  R.  256  ;  Shillibeer  v.  Glyn, 

2  M.  &  Welsh.  R.  143.     Sir  James  Mansfield,  in  Mills  v.  Graham,  4  Bos. 
&  Pull.  R.  140, 145,  says  :  "  A  bailment  of  goods  to  be  re-delivered,  imports 
an  agreement  to  re-deliver.     All  special  bailments  import  a  contract  to 
re-deliver,  when  the   purpose    for  which  the   goods   were   deposited   is 
answered.     See  also  Smedes  v.  Bank  of  Utica,  20  Johns.  (N.  Y.)  R. 
377 ;  S.  C.  in  Error,  3  Cow.  (N.  Y.)  R.  662  ;  Bank  of  Utica  v.  McKin- 
ster,  11  Wend.   (N.  Y.)  R.  473  ;  Todd  v.  Figley,  7  Watts  (Penn.)  R. 
542.     The  distinction  between  engaging  to  do  an  act  gratuitously  and 
then  omitting  to  do  it,  and  an  unfaithful  performance  of  the  engagement 
after  its  execution  is  entered  upon,  or,  in  other  words,  the  difference 
between  nonfeasance  and  misfeasance  in  gratuitous  bailees,  is  as  very 
learnedly  discussed  at  the  bar  and  by  Ch.  J.  Kent  in  Thome  v.  Deas,  4 
Johns.  (N.  Y.)  R.  84  to  102.     Sir  William  Jones  considers  (Essay  on 
Bailm.)  that  an  action  will  bar  the  non-performance  of  a  promise  to  become 
a  mandatary,  though  the  promise  be  merely  gratuitous ;  but  all  the  leading 
cases  show,  that  by  the  Common  Law,  a  person  who  undertakes  to  do  an  act 
for  another,  without  reward,  is  not  answerable  for  omitting  to  do  the  act ; 
and  that  he  is  only  responsible  when  he  attempts  to  do  it  and  does  it  amiss. 
In  other  words,  he  is  responsible  for  a  misfeasance,  but  not  for  nonfeasance, 
even  though  special  damages  are  averred.     "  Those,"  says  Kent,  C.  J.  in 
Thome  v.  Deas,  ub.  sup.  "  who  are  conversant  with  the  doctrine  of  man' 
datum  in  the  Civil  Law,  and  have  perceived  the  equity  which  supports  it, 
and  the  good  faith  which  it  enforces,  may,  perhaps,  feel  a  portion  of  regret 
that  Sir  William  Jones  was  not  successful  in  his  attempt  to  ingraft  this 
doctrine,  in  all  its  extent,  into  the  English  law." 


CH.  II.]  CARRIERS   WITHOUT  HIRE.  23 

has  been  laid  down,  in  the  following  words:  viz.,  Tlie  confi- 
dence induced  by  undertaking  any  service  for  another  is  a 
sufficient  legal  consideration  to  create  a  duty  in  the  performance 
of  it.  This  is  a  proposition  which  includes  cases  stronger 
than  that  of  Coggs  v.  Bernard,  for  there,  the  defendant  had 
undertaken  to  lay  the  goods  down  safely,  and  thus  introduced 
a  special  term  into  his  contract.  From  Lord  Holt's  judg- 
ment in  this  case,  it  will  be  seen,  that  notwithstanding  what 
was  said  by  Lord  Coke  in  Southcote's  case,  there  is  a  differ- 
ence between  the  effect  of  a  gratuitous  undertaking  to  keep 
or  carry  goods,  and  a  gratuitous  undertaking  to  keep  or  carry 
them  safely.  But  under  the  rule  just  laid  down,  a  gratuitous 
and  voluntary  agent,  who  has  given  no  special  undertaking, 
though  the  degree  of  his  responsibility  is  greatly  inferior  to 
that  of  a  hired  agent,  is  yet  bound  not  to  be  guilty  of  gross 
negligence.1  It  is  indeed  clear,  from  the  decisions  which  will 


1  See  note  to  Coggs  v.  Bernard,  by  Smith,  1  Smith's  Lead.  Cas.  96. 
The  decision  in  the  case  of  Southcote,  referred  to  in  the  text,  has  not  been 
questioned,  but  the  dictum  of  Lord  Coke,  (see  the  case,  4  Rep.  84  ;  Cro. 
Eliz.  815,)  "  that  to  keep  and  to  keep  safely  are  one  and  the  same  thing," 
Sir  William  Jones  considers  to  be  completely  overthrown  by  Lord  Holt  in 
Coggs  v.  Bernard.  All  the  later  authorities  explode  the  doctrine,  that  an 
undertaking  to  keep,  and  an  undertaking  to  keep  safely,  amount  to  the  same 
thing.  Story  on  Bailm.  §  72.  Southcote's  case,  according  to  Lord  Coke's 
own  report,  was  as  follows  :  He  brought  detinue  against  the  defendant, 
Bennet,  for  certain  goods,  and  declared,  that  he  delivered  them  to  the 
defendant  to  keep  safe  ;  the  defendant  confessed  the  delivery  ;  and  pleaded 
in  bar,  that,  after  the  delivery,  one  J.  S.  stole  them  feloniously  out  of  his 
possession  ;  the  plaintiff  replied,  that  the  said  J.  S.  was  the  defendant's 
servant,  retained  in  his  service,  and  demanded  judgment ;  and,  upon  de- 
murrer in  law,  judgment  was  given  for  the  plaintiff.  And  the  reason  or 
the  cause  of  the  judgment  was,  because  the  plaintiff  delivered  the  goods 
to  be  safely  kept,  and  the  defendant  had  taken  it  (the  risk)  upon  him  by 
the  acceptance  upon  such  delivery,  and,  therefore,  he  ought  to  keep  them 
at  his  peril  ;  although,  in  such  a  case,  he  should  have  nothing  for  his  safe 
keeping.  This  is  the  substance  of  the  case  (see  Story  on  Bailm.  §  69)  ; 
and  Lord  Coke,  in  the  sequel,  proceeds  to  expound  his  own  views  of  the 
general  doctrine,  with  that  superabundance  of  learning  for  which  he  was 
so  remarkable.  Sir  William  Jones,  in  commenting  upon  this  case,  (dis- 


24  LAW  OF   CARRIERS.  [CH.  II. 

be  offered,  that  a  gratuitous  bailee  (as  a  carrier  without  hire) 
is  chargeable  for  gross  negligence,  if  not  liable  for  other  kinds 
of  negligence. 

§  21.  The  rule  as  to  responsibility  for  gross  negligence  in 
a  depositary,  it  is  evident  from  what  has  been  offered,  will 
apply  to  a  mandatary,  or  a  carrier  without  hire.  The  liability 
of  both  seem  to  be  precisely  the  same,  and  both  are  bound 
to  slight  diligence,  and  to  slight  diligence  only,  and  are  liable 
for  nothing  short  of  gross  negligence,  the  reason  in  each  being 
the  same,  viz.,  that  neither  is  to  receive  any  reward  for  his 
services.1  In  Doorman  v.  Jenkins,2  which  was  the  case  of  a 
depositary,  Mr.  J.  Taunton  says  :  "  The  counsel  properly 
admitted,  that  as  this  bailment  was  for  the  benefit  of  the  bailor, 
and  no  remuneration  was  given  to  the  bailee,  the  action  could 
not  be  maintainable  except  in  the  case  of  gross  negligence." 
In  the  case  of  Foster  et  al.  v.  Essex  Bank,3  the  Court  say, 
that  in  case  of  a  deposit  to  be  kept  without  reward,  "  the 
bailee  will  be  answerable  only  for  gross  negligence,  which  is 
considered  as  equivalent  to  a  breach  of  faith ."  "Where  a 
promissory  note  was  delivered  to  a  bailee,  on  the  voluntary 
undertaking,  without  reward,  to  secure  and  take  care  of  it :  it 
was  held,  that  he  was  not  bound  to  take  any  active  measures 

claiming  any  intention  to  speak  in  derogation  of  the  great  commentator  of 
Littleton,)  says,  "  it  must  be  allowed,  that  his  profuse  learning  often  ran 
wild,  and  that  he  has  injured  many  a  good  cause  by  the  vanity  of  thinking 
to  improve  them."  Jones  on  Bailm.  42. 

1  "  The  contract  of  mandate  is  so  nearly  allied  to  that  of  deposit,  that 
it  may  properly  be  deemed  to  belong  to  the  same  class."     Story  on  Bailm. 
§  140;  see  also  Ibid.  $  150.     That  all  unpaid  agents  are  bound  not  to  be 
guilty  of  gross  negligence.     See  note  by  Mr.  Smith  to  the  case  of  Coggs 
v.  Bernard,  1  Smith's  Lead.  Cas.  p.  219  of  the  Am.  ed.,  1847,  and  the 
note  of  Mr.  Wallace,  the  American  Editor,  Ibid.  p.  241  ;  and  see  Shiells 
v.  Blackburne,  1  H.  Black.  R.  158. 

2  Doorman  «.  Jenkins,  2  Adol.  &  Ell.  R.  256. 

3  Foster  et  al.  v.  Essex  Bank,  17  Mass.  R.  479.    On  a  bailment  to  keep, 
without  an  interest,  the  bailee  is  liable  only  for  gross  negligence.     Chase 
v.  Maberry,  3  Earring.  (Del.)  R.  266. 


OH.   II.]  CARRIERS   WITHOUT  HIRE.  25 

to  obtain  security,  but  was  simply  bound  to  keep  the  note 
carefully  and  securely,  and  receive  the  money  ;  and  that  the 
owner  could  not  recover  of  him  for  the  loss  thereof,  without 
proof  of  gross  negligence  or  fraud.1  Accordingly}  whenever 
the  extent  of  a  mandatary's  liability  is  discussed,  it  is  common 
to  find  cases  respecting  that  of  depositaries  cited  and  relied 
on,  and  so  vice  versa. 

§  22.  Gross  negligence  has  already  been  defined,2  and  it 
appears  from  the  definition  which  has  been  given,  that  it 
means  nothing  more  than,  in  the  words  of  Mr.  J.  Taunton, 
"a  great  and  aggravated  degree  of  negligence  as  distin- 
guished from  negligence  of  a  lower  degree."  3  Therefore, 
as  the  learned  Judge,  in  the  case  referred  to,  says,  there  may 
be  cases  where  the  question  of  gross  negligence  is  matter  cf 
law  more  than  of  fact,  and  others,  where  it  is  matter  of  fact 
more  than  of  law.  All  the  cases  afford  illustration  of  the 
difficulty  of  defining  gross  negligence  with  satisfactory  pre- 
cision ;  but  the  case  of  Tracy  v.  Wood  4  is  considered  very 
striking,  in  respect  of  the  nice  and  difficult  line  of  distinction 
between  what  is  and  what  is  not  gross  negligence,  under  the 
circumstances.5  The  explanations  to  the  jury  by  the  learned 
Judge,  in  that  case,  are,  that  gross  negligence  is  the  want  of 
that  care  which  unpaid  bailees,  of  ordinary  prudence,  usually 
take  of  bailed  property  ;  again,  the  want  of  that  care  which 
men  of  common  sense,  however  inattentive,  usually  take  of 
their  own  property  ;  again,  the  care  which  men  ought  to  be 
presumed  to  take  of  their  own  properly  ;  again,  the  reason- 
able care  which  unpaid  bailees  usually  take  of  bailed  pro- 
perty ;  and,  again,  that  reasonable  care  which  he  himself 


1  Whitney  v.  Lee,  S  Met.  (Mass.)  R.  91. 

2  See  ante,  6  10. 

3  Doorman  v.  Jenkins,  2  Adol.  &  Ell.  R.  261. 

4  Tracy  v.  Wood,  3  Mason  (Cir.  Co.)  R.  -132. 

5  See  note  (a)  to  p.  572  of  Kent  Comm.  ;  and  see  Foster  v.  Essex 
Bank,  ub.  sup. 

3 


26  LAW  OF   CARRIERS.  [CH.  II. 

usually  took  of  bailed  property.  It  has  been  ably  argued, 
that  the  Common  Law  principle  set  out,  in  the  nature  of  the 
action,  that  any  negligent  conduct  which  causes  injury  or 
loss,  or  which  satisfies  the  jury  that  there  has  been  fraud  and 
collusion,  explains  itself  more  clearly  than  those  various  defi- 
nitions explain  it.  The  expressions,  as  is  said,  convey  so 
indefinite  a  meaning,  that  we  find  Lord  Holt  saying,  that  a 
hirer  and  borrower  are  both  liable  for  slight  negligence,  and 
Sir  William  Jones  and  Mr.  Justice  Story  maintaining,  that  a 
borrower  is  liable  for  slight  negligence,  and  a  hirer  only  for 
gross  negligence.  There  is  no  test  to  which  these  difficulties 

o  o    o 

are  to  be  submitted  but  the  form  of  the  pleadings.  The 
action  against  both  is  the  same,  and  charges  negligent  con- 
duct, occasioning  injury  or  loss ;  from  which  it  appears  that 
the  older  Judge  is  right  in  saying,  that  the  same  degree  of 
negligence  will  make  both  liable  (with  which  Blackstone 
agrees)  ;  and  also  in  saying,  that  slight  negligence  or  any 
negligence,  if  it  be  the  legal  cause  of  the  injury  or  loss,  will 
make  them  liable.1 


1  Note  of  Mr.  Wallace  to  Coggs  v.  Bernard,  commencing  on  p.  227  of 
1  Smith's  Lead.  Cas.  (Amer.  ed.,  1847.)  In  the  note  referred  to,  Mr. 
Wallace  also  says,  —  "  We  find  it  frequently  laid  down,  that  an  unpaid 
bailee  is  liable  only  for  gross  negligence.  This,  it  will  be  observed,  is  not 
a  legal  term  ;  the  declaration  charging  only  fraud,  or  careless  and  negli- 
gent conduct,  producing  damage  ;  it  is  an  expression  used  by  Judges  and 
text  writers,  to  explain  what  is  meant  by  the  legal  terms  used  in  the 
declaration.  If  actual  fraud  and  malignity  of  design  is  the  point  of  the 
case,  then  gross  negligence  must  mean,  such  wanton  carelessness  as  sat- 
isfies the  jury  of  such  corrupt  design  ;  but  if — as  is  more  frequently  the 
case  —  actual  fraud  in  fact  cannot  be  inferred,  then  negligence  must  be 
considered  gross  or  not,  according  to  the  degree  in  which  it  is  the  cause  of 
the  injury.  Nearly  all  the  confusion  and  uncertainty  which  belong  to  the 
subject  of  bailments,  have  been  occasioned  by  the  unfortunate  introduction 
of  the  words  gross  and  slight  negligence,  which  do  not  belong  to  our  law, 
and  which  convey  no  precise  idea.  The  Civil  Law  distribution  and  clas- 
sification of  those  liabilities  is  entirely  different  from  ours ;  our  Jaw  has 
conceived  of  the  legal  obligations  and  duties  of  men,  in  relation  to  their 
neighbor's  property,  and  has,  by  this  action  on  the  case,  defined  them  with 


. 

CH.  II.]  CARKIERS   WITHOUT  HIRE.  27 

§  23.  May  it  not  be  fairly  collected  from  the  opinions  of 
the  most  learned  Judges,  that  as  a  settled  principle  of  the 
Common  Law,  any  palpable  negligence  in  a  gratuitous 
bailee,  is  culpable  negligence ;  and  that  if  a  loss,  in  conse- 
quence, happens  to  the  bailor,  the  former  is  liable  ?  1  Accord- 
ing to  Lord  Chief  Justice  Holt,  in  Coggs  v.  Bernard,2  the 
trust  is  a  sufficient  consideration  to  create  the  obligation  of 
careful  management.  Lord  Ellenborough,  in  his  address  to 
the  jury  in  Nelson  v.  Mackintosh,3  says,  that  every  person 
who  delivers  goods  to  another  to  be  carried  for  hire,  has  a 
right  to  the  utmost  care,  and  where  a  person  does  not  carry 
for  hire,  he  is  bound  to  take  proper  and  prudent  care  of  that 
which  is  committed  to  him ;  and  if  he  ascertains  that  the 
article  is  of  great  value,  he  is  bound  to  watch  with  great 
care  and  diligence.  Lord  Chief  Justice  Denman  said,  in 
delivering  the  opinion  of  the  Court,  in  Hinton  v.  Dibbin,4 
"  When  we  find  '  gross  negligence  '  made  the  criterion  to 
determine  the  liability  of  a  carrier  [he  is  speaking  of  a  com- 
mon carrier,]  who  has  given  the  usual  notice,  it  might, 
perhaps,  have  been  reasonably  expected  that  something  like 
a  definite  meaning  should  have  been  given  to  the  expression. 
It  is  believed,  however,  that  in  none  of  the  numerous  cases 
upon  this  subject,  is  any  such  attempt  made ;  and  it  may 
well  be  doubted  whether,  between  '  gross  negligence '  and 
negligence  merely,  any  intelligible  distinction  exists."  In 
Wyld  v.  Pickford,  in  the  English  Exchequer  Chamber,5 
Parke,  B.,  affirms,  that  in  some  of  the  cases,  the  term,  "  gross 
negligence  "  has  been  defined  in  such  a  way  as  to  mean 


so  much  comprehensiveness  and  precision,  that  the  same  principle  applies 
irrespectively  of  the  seat  of  the  possession." 

1  See  opinions  of  Holroyd,  J.,  in  Garnett  ».  Willan,  5  B.  &  Aid.  R. 
53;  of  Dallas,  C.   J.,  in  Duff  v.  Budd,  3  Brod.   &  Bing.  R.  177;  of 
Best,  J.,  in  Batson  v.  Donovan,  4  B.  &  Aid.  R.  32. 

2  See  Appendix. 

3  Nelson  v.  Mackintosh,  1  Stark.  R.  237. 

4  Hinton  v.  Dibbin,  2  Adol.  &  Ell.  R.  646. 

5  Wyld  v.  Pickford,  8  M.  &  Welsh.  R.  460. 


28  LAW   OF   CARRIERS.  [CH.  II. 

"  ordinary  negligence,"  or  the  want  of  such  care  as  a  pru- 
dent man  would  take  of  his  own  property  ;  and,  again,  a 
common  carrier,  limiting  his  responsibility  by  notice,  is  not 
made  irresponsible  for  any  mistake  or  inadvertence,  "  but 
only  for  such  as  were  made  without  negligence,  whether 
gross  or  ordinary  ;  and  a  delivery  may  be  even  grossly  neg- 
ligent, which  is  inadvertent."  1  In  a  still  more  recent  case, 
in  the  same  Court,  Rolfe,  B.,  remarks,  —  "  I  said  I  could  see 
no  difference  between  negligence  and  gross  negligence  — 
that  it  was  the  same  thing,  with  the  addition  of  a  vitupera- 
tive epithet."  2 

§  24.  If  the  subject-matter  of  the  bailment  consists  of 
living  animals,  such  as  oxen,  horses,  or  sheep,  the  degree  of 
care  to  be  exercised  by  a  mandatary  must  be  consistent  with 
the  character  of  the  trust  and  the  nature  of  the  property, 
agreeably  to  the  doctrine  as  above  stated  by  Lord  Ellen- 
borough.  The  mandatary,  therefore,  in  such  case,  is  bound 
to  give  the  animals  a  proper  and  reasonable  amount  of  exer- 
cise and  fresh  air,  and  to  furnish  them  with  suitable  food  and 
nourishment,  and  generally  to  provide  them  with  all  such 
things  as  are  essential  to  the  preservation  of  their  health  ; 
and  his  neglect  so  to  do  will  amount  to  a  positive  breach  of 
trust.3  Taking  charge  of  cattle  or  sheep,  and  afterwards 
taking  no  heed  of  them,  but  allowing  them  to  stray  away  on 
a  common,  and  get  drowned  or  lost,  this  is  a  breach  of  trust, 
and  the  mandatary  is  responsible  for  the  loss.4  If  a  man 
turns  a  horse,  of  which  he  has  consented  gratuitously  to 
take  charge,  into  a  dangerous  pasture  after  dark,  and  the 
horse  falls  into  a  pit  or  a  well,  or  into  the  shaft  of  a  mine, 

1  Wyld  v.  Pickford,  8  M.  &  Welsh.  R.  462. 

2  Wilson  v.  Brett,  11  M.  &  Welsh.  R.  113. 

3  Si  un  cheval  soil  bail  a  un  homme  a  garder  et  apres  il  ne  lui  done  sus- 
tenance, p.  q.  il  morust  action  sur  le  cas  gist.  Hil.  Term,  2  Hen.  7,  9,  B.  ; 
cited  in  Add.  on  Contr.  847. 

4  Hil.  Term,  2  Hen.  7;  2  Hen.  7,  9,  B.  ub.  sup. ;  Coggs  v.  Bernard, 
Appx. 


CH.  II.]  CARRIERS   WITHOUT  HIRE.  29 

this  is  gross  negligence  and  breach  of  trust,  and  he  shall  be 
responsible  for  the  loss.1  One  driving  a  sulkey  for  amuse- 
ment, and  at  the  request  of  the  owner,  is  liable  if  he  do  not 
use  common  prudence,  and  by  carelessness  and  negligence 
break  the  sulkey.2 

§  25.  The  true  way  of  putting  cases,  where  the  subject- 
matter  of  a  bailment  is  a  perishable  commodity,  is  to  con- 
sider whether  the  party  has  omitted  that  care  which  bailees 
without  reward  are  usually  understood  to  take  of  property 
of  the  like  nature.3  If  the  mandatary  of  a  valuable  paint- 
ing, for  example,  takes  no  heed  for  its  preservation,  but  lets 
it  lie  on  the  damp  ground,  or  places  it  in  a  kitchen,  or  against 
a  damp  wall  in  a  room  where  there  is  no  fire,  when  he  might 
have  placed  it  in  a  dry  situation  and  in  perfect  security,  this 
is  an  act  of  gross  negligence  ;  and  if  the  picture  is  seriously 
injured,  or  totally  destroyed  from  damp  or  dirt,  he  must 
make  good  the  loss,  unless  he  can  show  that  the  mandator 
knew  where  it  was  placed,  and  assented  to  its  being  there 
kept.4 

§  26.  A  gratuitous  bailee  ought  undoubtedly,  therefore,  to 
proportion  his  care  to  the  injury  or  loss  which  is  likely  to  be 
sustained  by  any  want  of  proper  care  on  his  part.5  This  is 
so  obvious,  that  it  scarcely  requires  to  be  insisted  on,  that 


1  Rooth  v.  Wilson,  1  B.  &  Aid.  R.  61.     If  a  man  places  a  horse,  of 
which  he  has  consented  gratuitously  to  take  charge,  in  a  pasture  sur- 
rounded by  rotten  and  very  defective  fences,  and  the  horse,  by  reason 
thereof,  strays  away  and  is  lost,  this  is  a  breach  of  trust,  for  which  he  shall 
be  answerable  ;  but  if  the  horse  was  a  wild  and  ungovernable  animal,  and 
got  away  through  his  own  recklessness  and  impatience  of  restraint,  as  much 
as  by  reason  of  the  defective  fences,  the  bailee  will  not  be  responsible. 
Domat,  Depot,  s.  3,  6. 

2  Carpenter  v.  Branch,  13  Verm.  R.  161. 

3  Styry  on  Bailm.  §  67. 

4  Mytton  v.  Cock,  2  Str.  R.  1099. 

5  See  Story  on  Bailm.  $  15,  186. 

3* 


30  LAW   OF   CARRIERS.  [CH.  II. 

the  degree  of  care  which  a  mandatary  may  be  required  to 
exert,  must  be  materially  affected  by  the  value  of  the  prop- 
erty, and  its  consequent  liability  to  be  stolen.  The  care  which 
would  be  proper  as  to  goods  of  small  value,  and  of  a  nature 
not  to  hold  out  strong  temptation  to  theft,  would  not  be 
proper  for  goods  of  great  value,  which  do  hold  out  such 
temptation.1  Lord  Stowell,  in  the  case  of  The  Rendsburg,2 
has  put  a  case  in  point.  "  If,"  said  he,  "  I  send  a  servant 
\vith  money  to  a  banker,  and  he  carries  it  with  proper  care, 
he  would  not  be  answerable  for  the  loss,  though  his  pocket 
were  picked  on  the  way.  But  if,  instead  of  carrying  it  in  a 
proper  manner  and  with  ordinary  caution,  he  should  carry 
it  openly  in  his  hand,  thereby  exposing  valuable  property, 
so  as  to  invite  the  snatch  of  any  person  he  might  meet  in  the 
crowded  population  of  the  town,  he  would  be  liable  ;  because 
he  would  be  guilty  of  the  negligentia  malitiosa,  in  doing 
that  from  which  the  law  must  infer,  that  he  intended  the 
event  which  has  actually  taken  place." 

§  27.  What  is,  and  what  is  not  gross  negligence,  or  negli- 
gence in  a  gratuitous  bailee,  amounting  to  a  breach  of  faith, 
is,  as  has  already  been  stated,  often  a  mixed  question  of  law 
and  fact,3  but  it  is  more  generally  a  pure  question  of  fact,  to 
be  determined  by  a  jury.4  It  must  be  judged  of,  in  endeav- 
oring to  apply  the  spirit  of  the  law,  by  the  actual  state  of 
society,  the  general  usages  of  life,  and  the  dangers  peculiar 
to  the  times,  as  well  as  by  the  apparent  nature  and  value  of 


1  Nelson  v.  Mackintosh,  1  Stark.  R.  237. 

2  6  Rob.  R.  142,  155  ;  and  see  ante,  §  8. 

3  Ante,  §  22 ;  Doorman  v.  Jenkins,  2  Ad.  &  Ell.  R.  261,  per  Taunton.  J. 

4  Vaughn  v.  Menlove,  3  Bing.  New  R.  468  ;  Beardslee  v.  Richardson, 
11  Wend.  (N.  Y.)  R.  25  ;  Storeer.  Gower,  6  Shep.  (Me.)  R.  174.    How 
much  care,  the  Court  in  this  case  said,  will,  in  a  given  case,  relieve  a  party 
from  the  imputation  of  gross  negligence,  or  what  omission  will  amount  to 
the  charge,  is  necessarily  a  question  of  fact,  depending  upon  a  greaWvariety 
of  circumstances,  which  could  not  exactly  be  defined.     See,  also,  Nelson 
v.  Mackintosh,  1  Stark.  R.  237 ;  Moor  v.  Moorgue,  Cowp.  R.  479. 


CH.  H.]  CARRIERS   WITHOUT  HIRE.  31 

the  subject-matter  of  ihe  bailment,  and  the  degree  of  care  it 
seems  to  demand.1  In  Beauchamp  v.  Powley,2  where  the 
defendant,  a  stage-coachman,  received  a  parcel  to  carry 
gratis,  and  it  was  lost  upon  the  road,  Lord  Tenterden 
directed  the  jury  to  consider  whether  there  was  great  negli- 
gence on  the  part  of  the  defendant,  and  the  jury,  thinking 
there  was,  found  a  verdict  against  him.  The  plaintiff  in 
Storee  v.  Gower,3  claimed  to  recover  a  sum  of  money, 
alleged  to  have  been  inclosed  in  a  letter,  and  delivered  by 
him  to  the  defendant,  to  be  carried  to  a  certain  town,  and 
left  with  a  certain  person  for  another  person,  but  by  the 
defendant  converted  to  his  own  use.  There  was  no  evidence 
that  the  defendant  received,  or  was  to  receive,  pay  for  carry- 
ing the  letter,  or  the  contrary.  It  was  the  province  of  the 
jury,  the  Court  held,  and  not  of  the  Court,  to  decide  the  ques- 
tion, whether  gross  negligence  was,  or  was  not,  proved  ;  and 
the  exceptions  which  had  been  filed  against  the  verdict,  which 
was  for  the  plaintiff,  were  sustained.  In  Tracy  v.  Wood,4 
which  was  the  case  of  a  mandatary  of  money,  the  learned 
Judge  said,  if  the  jury  were  of  opinion  that  the  defendant 
omitted  to  take  that  reasonable  care  of  the  gold  which  bailees 
without  reward  in  his  situation  usually  take,  or  which  he 
himself  usually  took  of  such  property,  under  the  circumstan- 
ces, he  had  been  guilty  of  gross  negligence. 

§  28.  As  a  'general  rule,  as  has  been  shown,  a  gratuitous 
bailee  would  be  excused  for  a  loss  occasioned  by  theft  or 
robbery ;  but  yet,  if  the  circumstances  attending  a  loss 
alleged  to  have  been  so  occasioned,  are  of  a  suspicious  char- 
acter, tending  to  throw  a  doubt  upon  the  good  faith  of  the 


1  See  ante,  §  7,  8,  11,  16  ;  Story  on  Bailm.  §  11;  Tompkins  v.  Salt- 
marsh,  14  S.  &  Rawle  (Perm.)  R.  275  ;  Storee  v.  Gower,  ub.  sup.  ;  Tracy 
».  Wood,  3  Mason  (Cir.  Co.)  R.  132. 

2  Beauchamp  v.  Powley,  1  M.  &  Rob.  R.  38. 

3  Storee  v.  Gower,  6  Shep.  (Me.)  R.  174,  ub.  sup. 

4  Tracy  v.  Wood,  3  Mason  (Cir.  Co.)  R.  132. 


32  LAW   OP  CARRIERS.  [CH.  II. 

mandatary,  a  jury  will  naturally  disbelieve  the  theft  or  rob- 
bery, and  treat  the  loss  as  unaccounted  for  and  unexplained.1 
The  captain  of  a  vessel  was  intrusted  with  a  seaman's  chest, 
to  be  carried  gratuitously  from  Trinidad  to  England,  and, 
during  the  voyage,  the  chest  was  opened  to  see  if  it  contained 
any  contraband  articles,  and  was  found  to  be  filled  with 
money  and  valuables,  which  were  taken  out  by  order  of  the 
captain,  put  into  a  canvas  bag,  and  deposited  in  the  captain's 
own  chest  in  his  cabin,  where  his  own  money  and  valuables 
were  kept.  On  the  arrival  of  the  vessel  at  Gravesend,  the 
captain  and  one  of  the  mates  went  ashore,  leaving  the  vessel 
in  charge  of  the  other  mate,  and  the  next  morning  the  cap- 
tain's chest  was  missing,  and  was  never  afterwards  discovered. 
It  further  appeared,  that  the  night  preceding  the  loss,  an 
excise  officer  and  two  young  men,  belonging  to  the  ship,  had 
been  allowed  to  sleep  in  the  captain's  cabin,  and  Lord  Ellen- 
borough  left  it  to  the  jury  to  say,  whether  the  captain  had  been 
guilty  of  negligence,  telling  them,  that  as  soon  as  he  had 
discovered  the  valuable  nature  of  the  property,  he  was  bound 
to  watch  it  with  great  care  and  diligence  ;  and  the  jury  being 
of  opinion,  that  proper  care  had  not  been  taken  of  the  money, 
found  a  verdict  for  the  plaintiff  for  the  full  value  of  the  prop- 
erty.2 

§  29.  In  cases,  therefore,  of  losses  alleged  to  have  been 
committed  by  theft  or  robbery,  the  circumstances,  and  the 
acts  and  declarations  of  the  mandatary  immediately  preced* 
ing,  and  directly  following  the  stealth,  are  of  importance ; 
direct  proof  being  difficult,  and  not  to  be  expected.  The 
circumstances  and  conduct  of  the  mandatary,  it  is  the  duty 
of  the  jury  to  weigh  with  the  utmost  circumspection  ;  and 
the  presumption  arising  therefrom  is  more  or  less  strong,  as 
they  might  appear  to  be  natural  and  consistent,  or  other- 
wise.1 Evidence  is  constantly  adapting  itself  to  the  state  of 


Ante,  §  11.  s  Nelson  v.  Mackintosh,  1  Stark.  R.  237. 


CH.  II.]  CARRIERS   WITHOUT  HIRE.  33 

society  and  the  concerns  of  the  world,  and  therefore  must 
accommodate  itself  to  the  altered  mode  of  travelling,  by 
stage-coaches,  railroads,  and  steamboats,  instead  of  (as  in 
more  early  times)  on  horseback  or  in  private  carriages.  Car- 
riers are  constantly  more  exposed  to  secret  stealth  in  a 
crowded  stage,  railroad  car,  or  a  steamboat,  crowded  with 
passengers,  where  the  traveller  cannot  keep  his  eye  upon  his 
own  baggage,  than  by  private  conveyance.  Public  houses 
of  entertainment  in  our  large  cities  are  generally  filled  with 
strangers,  and  without  great  circumspection,  the  traveller 
cannot  avoid  exposure  to  great  risks.  Hence  a  traveller, 
acting  as  a  gratuitous  carrier  of  the  property  of  another, 
should  not,  it  has  been  held,  be  precluded  from  showing 
how  he  conducted  himself,  and  the  degree  of  care  he  took 
of  the  property  in  his  custody.2 

§  30.  In  Tompkins  v.  Saltmarsh,3  S.  delivered  to  T.  at 
Georgetown,  in  the  District  of  Columbia,  five  bank  bills  of 
five  dollars  each,  to  be  conveyed  to  Athens,  Bradford  county, 
Pennsylvania,  there  to  be  delivered  to  S.  The  Court  held, 
in  the  first  place,  that  T.  was  not  bound  to  lay  aside  all  other 
business  to  take  the  direct  road  from  Georgetown  to  Athens  ; 
and  that  it  was  competent  for  him  to  show,  that  immediately 
on  the  receipt  of  the  bills,  he  proceeded  to  Philadelphia,  to 
New  York,  and  to  Athens,  and  to  show  how  he  conducted 
himself,  and  what  care  he  took  of  the  property,  and  that  his 
care  was  the  usual  ordinary  care.  The  Court  was  also  of 
opinion,  that  in  excuse  for  the  loss  of  the  money,  which  had 
been  stolen,  it  was  proper  that  evidence  should  be  received 
of  the  hue  and  cry  raised  immediately  after  the  discovery  of 
the  loss,  and  the  assiduous  and  indefatigable  exertions  of  the 


1  Tracy  v.  Wood,  3  Mason  (Cir.  Co.)  R.   132  ;  Graves  v.  Ticknor, 
6  N.  Hamp.  R.  537. 

2  Tompkins  v.  Saltmarsh,  14  S.  &  Rawle  (Penn.)  R.  275. 

3  Ub.  sup. 


34  LAW   OF   CARRIERS.  [CH.  II. 

carrier  in  searching  for  the  money  ;  and  though  it  was  said, 
that  this  would  have  been  the  course  of  a  guilty  man,  yet  it 
was  one  which  an  innocent  man  would  naturally  take,  and 
which,  if  he  did  not  take,  all  would  condemn  him.  The  next 
best  evidence  of  the  proof  of  a  thing  itself,  was  the  proof  of 
those  circumstances  which  would  naturally  attend  it ;  and 
these  were  the  production  of  the  cut  valise,  the  immediate 
promulgation  of  the  theft,  and  pursuit  of  the  property. 

§  31.  In  Tracy  v.  "Wood,1  the  case  was :  A.  undertook 
gratuitously  to  carry  two  parcels  of  doubloons  for  B.  from 
New  York  to  Boston,  in  a  steamboat,  by  the  way  of  Provi- 
dence. A.  in  the  evening  (the  boat  being  to  sail  early  in  the 
morning)  put  both  bags  of  doubloons,  one  being  within  the 
other,  into  his  valise  with  money  of  his  own,  and  carried  it 
on  board  the  steamboat,  and  put  it  into  a  berth  in  an  open 
cabin,  although  notice  was  given  to  him  by  the  steward  that 
they  would  be  safer  in  the  bar-room  of  the  boat.  A.  went 
away  in  the  evening,  and  returned  late,  and  slept  in  another 
cabin,  leaving  his  valise  where  he  had  put  it.  The  next 
morning,  just  as  the  boat  was  leaving  the  wharf,  he  discov- 
ered on  opening  his  valise  that  one  bag  was  gone,  and  he 
gave  an  immediate  alarm  and  ran  up  from  the  cabin,  leaving 
the  valise  open  there  with  the  remaining  bag,  his  intention 
being  to  stop  the  boat.  He  was  absent  for  a  minute  or  two 
only,  and  on  his  return,  the  other  bag  also  was  missing.  An 
action  being  brought  against  him  by  the  bailor  for  the  loss  of 
both  bags,  the  question  was  left  to  the  jury,  whether  there 
was  not  gross  negligence,  although  the  bailee's  own  money 
was  in  the  same  valise.  The  jury  was  directed  to  consider, 
whether  the  party  used  such  diligence  as  a  gratuitous  bailee 
ought  to  use  under  such  circumstances.  They  found  a  verdict 
for  the  plaintiff  for  the  first  bag  lost,  and  for  the  bailee  for  the 
second. 


1  Tracy  v.  Wood,  3  Mason  (Cir.  Co.)  R.  132. 


CH.  II.]  CARRIERS    WITHOUT    HIRE.  35 

§  32.  Although,  prim  a  facie,  in  cases  of  the  gratuitous  car- 
riage of  goods  for  another,  the  bailee,  when  he  keeps  them 
with  the  same  care  as  he  keeps  his  own,  of  the  same  descrip- 
tion, would  repel  the  imputation  of  negligence,  yet  by  the 
above  case  of  Tracy  v.  Wood,  it  appears,  that  the  presump- 
tion may  be  overcome  by  proofs  of  actual  negligence,  or  of 
conduct,  which,  though  applied  to  his  own  goods,  as  well  as 
to  those  bailed,  would  be  deemed  negligence  in  bailees 
without  hire  of  ordinary  prudence.1 


1  Story  on  Bailm.  §  183,  185.  Sir  William  Jones  has  put  a  case  illus- 
trating the  former  position  in  the  text:  —  "If  Stephen  desire  Philip  to 
carry  a  diamond  ring  from  Bristol  to  a  person  in  London,  and  he  put  it 
with  bank  notes  of  his  own  into  a  letter  case,  out  of  which  it  is  stolen  at 
an  inn,  or  seized  by  a  robber  on  the  road,  Philip  shall  not  be  answerable 
for  it,  although  a  very  careful,  or  perhaps,  a  commonly  prudent  man 
would  have  kept  it  in  his  purse  at  the  inn,  and  have  concealed  it  some- 
where in  the  carriage.  But  if  he  were  to  secrete  his  own  notes  with 
peculiar  vigilance,  and  either  leave  the  diamond  in  an  open  room,  or  wear 
it  on  his  finger  in  the  chaise,  he  would  be  bound,  in  case  of  a  loss  by 
stealth  or  robbery,  to  restore  the  value  of  it  to  Stephen."  Jones  on  Bailm. 
62.  The  other  position  may  be  illustrated  by  the  case  of  Tracy  v.  Wood, 
Story  on  Bailm.  §  185.  And  see  1  Browne,  Civil  Law,  383,  note.  In 
Story  on  Bailm.  §  67,  it  is  said,  that  the  true  way  of  putting  questions  of 
this  nature  is,  to  consider  whether  the  party  has  omitted  that  care,  iv/iich 
bailees  without  reward  are  usually  understood  to  take  of  property  of  the  like 
nature ;  and  he  refers  to  Tracy  v.  Wood,  ub.  sup.,  and  to  the  opinion  of 
Lord  Stowell  in  the  case  of  The  William,  (6  Rob.  R.  316,)  which  was  a 
case  of  justifiable  capture,  where  the  captors  are  held  responsible  for  due 
(that  is,  for  reasonable)  diligence.  In  that  case  Lord  Stowell  thus  ex- 
pressed himself:  —  "On  questions  of  this  nature,  there  is  one  position 
sometimes  advanced,  which  does  not  meet  with  my  entire  assent ;  namely, 
that  captors  are  answerable  only  for  such  care  as  they  would  take  of  their 
own  property.  This,  I  think,  is  not  a  just  criterion  in  such  case  ;  for  a 
man  may,  with  respect  to  his  own  property,  encounter  risks,  from  views 
of  particular  advantage,  or  from  a  natural  disposition  to  rashness,  which 
would  be  entirely  unjustifiable,  in  respect  to  the  custody  of  the  goods  of 
another  person,  which  have  come  to  his  hands  by  an  act  offeree.  Where 
property  is  confided  to  the  care  of  a  particular  person,  by  one  who  is,  or  may 
be  supposed  to  be,  acquainted  with  his  character,  the  care,  which  he  would 
take  of  his  own  property,  might,  indeed,  be  considered  as  a  reasonable 


36  LAW   OF   CARRIERS.  [CH.  II. 

§  33.  It  is  undoubtedly  true,  as  has  been  expressly  held  in 
North  Carolina,  that  a  bailee  who  undertakes  gratuitously  to 
carry  money,  is  bound  to  use  care  and  caution  ;  and  that,  if 
he  loses  the  money  intrusted  to  him,  but  does  not  lose  his  own, 
it  is  very  strong  evidence,  that  he  did  not  use  becoming 
caution.1  But  it  is  quite  clear,  that  gross  negligence  may  be 
committed  by  a  depositary  or  a  mandatary,  although  he  may 
have  kept  the  property  intrusted  to  him  with  as  much  care  as 
his  own ;  and  this  doctrine  has  been  sanctioned  by  cases 
other  than  that  of  Tracy  v.  Wood.  The  very  point  was 
presented  in  Doorman  v.  Jenkins.2  This  was  an  action  of 
assumpsit,  in  which  it  was  proved  that  the  defendant  —  a 
coffee-house  keeper  —  having  custody  of  money  without 
reward,  lost  it,  and  made  the  following  statement:  —  That 
he  had  unfortunately  put  it,  with  a  larger  sum  of  money  of 
his  own,  into  his  cash  box,  which  was  kept  in  his  tap-room  ; 
that  the  tap-room  had  a  bar  in  it,  and  was  open  on  a  Sun- 
day ;  but  the  rest  of  his  house  which  was  inhabited  was  not 
open  on  Sunday  ;  and  that  the  cash  box,  with  his  own  and 
the  plaintiff's  money,  had  been  stolen  on  that  day.  The 
Judge  left  it  to  the  jury,  whether  the  defendant  was  guilty  of 
gross  negligence,  and  told  them  that  the  loss  of  the  defendant's 


criterion."  Certainly  it  might,  says  Story,  "  if  such  character  was 
known,  and  the  party  under  the  circumstances  might  be  presumed  to  rely, 
not  on  the  rule  of  law,  but  on  the  care,  which  the  party  was  accustomed 
to  take  of  his  own  property  in  making  the  deposit.  But,  unless  he  knew 
the  habits  of  the  bailee,  or  could  be  fairly  presumed  to  trust  to  such  care, 
as  the  bailee  might  use  about  his  own  property  of  a  like  nature,  there  is 
no  ground  to  say,  that  he  has  waived  his  right  to  demand  reasonable  dili- 
gence." But  in  Monteith  v.  BisselPs  Adnvr.,  Wright  (Ohio)  R.  411,  the 
Judge  said,  that  a  bailee  of  money,  without  reward,  was  not  liable,  if  he 
kept  the  money  where  he  kept  his  own. 

1  Bland  v.  Woniach,  2  Mur.  (N.  C.)  R.  373.     See  also  Stanton  v. 
Bell,  2  Hawks,  R.  145.     In  Anderson  v.  Foresman,  Wright,  (Ohio)  R. 
598,  the  Judge  told  the  jury,  that  one  carrying  money  without  reward,  is 
bound  to  take  the  same  care  of  it  that  he  does  of  his  own.     And  see  Fos- 
ter v.  Essex  Bank,  17  Mass.  R.  479. 

2  Doorman  v.  Jenkins,  2  Adol.  &  Ell.  R.  256. 


CH.  H.]  CAERIERS   WITHOUT  HIRE.  37 

own  money  did  not  necessarily  prove  reasonable  care.  The 
jury  having  found  for  the  plaintiff,  it  was  held,  first,  that  the 
question  of  gross  negligence  was  properly  left  to  the  jury,  and 
secondly,  that  there  was  evidence  upon  which  they  might 
find  for  the  plaintiff. 

§  34.  Again,  where  a  gratuitous  bailee  put  a  horse  of  his 
brother  into  a  pasture  with  his  <nun  cattle,  in  the  night  time, 
and  by  reason  of  a  defect  of  fences,  the  horse  fell  into  a 
neighboring  field,  and  was  killed  ;  it  was  thought,  thai  he 
was  responsible  to  the  owner,  because  it  was  gross  negli- 
gence to  put  the  horse  into  a  dangerous  pasture,  to  which 
he  was  unused.1 

§  35.  It  has  nevertheless  been  deduced  as  a  corollary  from 
the  rule  often  laid  down  in  the  books,  that  a  gratuitous  bailee 
is  bound  to  take  the  same  care  of  the  thing  bailed,  as  he 
takes  of  his  own ;  that,  if  he  commits  a  gross  neglect  in 
regard  to  his  own  goods,  as  well  as  in  regard  to  those  bailed, 
by  which  both  are  lost,  he  is  not  liable.2  But,  notwithstand- 
ing, says  Story,  the  weight  of  the  authorities  referred  to, 
they  do  not  seem  to  express  the  general  rule,  in  its  true 
meaning.  The  Common  Law  upon  the  subject  of  gross 
negligence,  differs  from  that  which  is  supposed  to  be  the 
doctrine  of  the  Civil  Law  ;  for  gross  negligence,  although  it 
may  be  sometimes  presumptive  of  fraud,  and  undistinguish- 
able  from  it,  yet  may  consist  of  perfect  innocence  of  inten- 
tion.3 Hence,  it  is  no  defence  to  a  depositary,  that  he  has 


1  Rooth  ».  Wilson,  B.  &  Aid.  R.  59. 

2  Sir  William  Jones  seems,  in  some  places,  so  to  understand  the  doc- 
trine.    Jones  on  Bailm.  31,  32,  46,  47.     Bracton,  also,  so  lays  it  down  on 
the  authority  of  the  Civil  Law.     Bracton,  Lib.  3,  cap.  2,  §  1  ;  Just.  Inst. 
Lib.  3,  tit.  15,  §  3  ;    Dig.  Lib.  16,  tit.  3,  1.  20,  32.     Lord  Holt  has  also 
given  the  authority  of  his  great  name,  Coggs  v.  Barnard,  App.  ;    and 
he  has  been  followed  by  Kent,  2  Kent,  Comm.  562,  563,  and  note  (a)  ; 
Foster  v.  Essex  Bank,  17  Mass.  R.  479.     See  Story  on  Bailm.  §  63. 

3  Story  on  Bailm.  §  64. 

4 


38  LAW     OF  CARRIERS.  [CH.   II. 

acted  with  good  faith,  if  in  truth  he  has  been  guilty  of  gross 
negligence ; l  as  appears  by  Tracy  v.  Wood,  and  the  other 
cases  above  cited.  In  McLean  v.  Rutherford,  in  Missouri,2 
it  was  affirmed  by  one  of  the  Judges,  that  the  bailee's  prop- 
erty sharing  the  fate  of  the  bailor's,  while  it  repels  the  pre- 
sumption of  fraud,  will  not  in  all  cases  excuse  the  bailee.3 
A  man  might,  in  respect  of  his  own  property,  be  willing  to 
encounter  extraordinary  risks,  or  adventure  upon  mere  gam- 
bling speculations,  with  a  view  to  a  particular  advantage,  or 
from  a  natural  disposition  to  rashness,  which  would  be 
entirely  unjustifiable  in  respect  to  the  goods  of  another  put 
in  his  custody.4 

§  36.  A  mandatary  who  undertakes  an  office  of  skill,  is 
bound  to  exercise  such  an  amount  of  skill  as  he  possesses, 
or  such  an  amount  of  skill  as  by  his  conduct  and  actions,  and 
ordinary  course  of  employment,  he  holds  himself  out  to  the 
world  to  possess.  An  illustration  of  this  principle  is  given 
by  Mr.  J.  Heath.  "  If,"  says  he,  "  a  man  applies  to  a  sur- 

1  See  ante,  fy  10,  note. 

2  Story  on  Bailm.  §  66. 

3  Per  Napton,  J.,  in  McLean  v.  Rutherford,  8  Missouri,  R.  109. 

4  Cases  may  indeed  be  put,  in  which  the  circumstances  of  extreme 
rashness  on  the  part  of  the  depositor  are  so  strong  as  justly  to  create  an 
exception  to  the  general  rule  of  law,  or  rather  a  dispensation  from  it. 
As,  if  the  depositor  should  knowingly  intrust  his  diamonds  or  other  valu- 
ables to  a  man  notoriously  weak  and  infirm  in  judgment,  or  to  a  minor 
•without  any  experience  or  discretion,  or  to  a  man  grossly  negligent  and 
prodigal  in  his  own  affairs,  or  subject  to  an  absence  of  mind  bordering  on 
derangement,  or  to  a  person  given  to  habiiual  intoxication;  and  from  these 
known  infirmities,  the  thing  bailed  should  be  innocently  lost ;  in  such  case, 
there  might  be  strong  ground  to  presume,  that  the  depositor  was  content 
to  trust  the  party  with  all  his  faults  and  infirmities,  and  to  take  upon  him- 
self the  responsibility,  for  all  losses  not  arising  from  actual  fraud.     At 
least,  it  might  fairly  be  put  to  a  jury  to  presume  a  special  contract  in  such 
a  case,  that  the  depositary  should  take  the  same  care  as  he  did  of  his  own 
property,  and  no  more,  and  he  should  not  be  responsible  except  for  fraud. 
But  these  cases  do  not  impugn  the  general  rule.     Story  on  Bailm.  §  66. 
The  William,  ub.  sup.  ;  McLean  v.  Rutherford,  ub.  sup. 


CH.  II.]  CARRIERS   WITHOUT  HIRE.  39 

geon  to  attend  him  in  a  disorder,  for  a  reward,  and  the  sur- 
geon treats  him  improperly,  there  is  gross  negligence,  and 
the  surgeon  is  liable  to  an  action.  The  surgeon  would  also 
be  liable  for  such  negligence,  if  he  undertook  gratis  to  attend 
a  sick  person,  because  his  situation  implies  skill  in  surgery. 
But  if  the  patient  applies  to  a  man  of  different  employment 
or  occupation  for  his  gratuitous  assistance,  who  either  does 
not  exert  all  his  skill,  or  administers  improper  remedies  to 
the  best  of  his  ability,  such  person  is  not  liable."  1  So,  a 
person  who  rides  a  horse  gratuitously,  at  the  owner's  request, 
for  the  purpose  of  showing  him  for  sale,  is  bound,  in  doing 
so,  to  use  such  skill  as  he  actually  possesses  ;  and,  if  proved 
to  be  a  person  conversant  with,  and  skilled  in  horses,  he  is 
equally  liable  with  a  borrower  from  an  injury  done  to  the 
horse  while  ridden  by  him.2 

§  37.  How  far  a  bailee  without  hire,  may  add  to  his  respon- 
sibility by  inserting  special  terms  in  his  promise  to  his  bailor, 
is  asserted  to  be  a  point  not  by  any  means  clearly  settled  by 
the  Common  Law.3  The  rule  of  the  Civil  Law,  as  applied 
to  a  depositary,  and  which  is  considered  a  rule  of  universal 
justice,4  is,  that  the  law  depends  on  the  contract :  Si  convenil, 
ut  in  deposilo  et  culpa  prcestetur,  rata  est  conventio  ;  contractus 
enim  leg-em  ex  conventione  accipiunt.5  Or,  as  it  is  otherwise 
expressed  :  Si  quid  nominatim  convenit,  vel  plus,  vel  minus, 
in  singulis  contractibus,  hoc  servabitur,  quod  initio  convenit. 
Legem  enim  contractus  debit.6  So,  by  the  Civil  Law,  the 


1  Shiells  v.  Blackburne,  1  H.  Black.  R.  162. 

2  Wilson  v.  Brett,  11  M.  &  Welsh.  R.  113. 

3  By  Mr.  Smith  in  his  note  to  Coggs  v.  Bernard,  1  Smith's  Lead.  Cas. 
222,  Am.  ed.,  1847.     But  he  refers  to  Kettle  v.  Bromsale,  Willes,  R. 
118  ;  to  the  observations  of  Sir  William  Jones  in  Southcote's  case  (4  Co. 
R.  83  b.)  ;  and  to  the  observations  of  Powell,  J.  in  Coggs  v.  Bernard, 
Appx. 

4  See  Story  on  Bailm.  §  81. 

5  Dig.  Lib.  16,  tit.  3,  1,  §  6  ;  Pothier,  Traite"  de  Depot,  n.  30. 

6  Dig.  Lib.  50,  tit.  17,  1,  23 ;  Jones  on  Bailm.  47,  48. 


40  LAW    OF   CARRIERS.  [CH.  II. 

general  responsibility  of  a  mandatary  may  be  varied  by  the 
special  contract  of  the  parlies,  either  enlarging  or  qualifying, 
or  limiting  it,  (except  for  the  protection  of  himself  against 
fraud  ; 1)  and  the  particular  contract  will  furnish  the  rule  of 
the  case  :  Placuit,  posse  rem  hac  conditione  deponi,  manda- 
tumque  suscipi  ul  res  periculo  ejus  sit,  qui  deposilum  vel  manda- 
tum  suscepit.2  Story  considers,  that  there  is  no  principle  of 
the  Common  Law,  which  would  prevent  a  depositary  from 
contracting  not  to  be  liable  for  any  degree  of  negligence,  in 
which  fraud  is  really  absent  ;  and  that  the  maxim  of  our 
jurisprudence,  modus  est  conventio  vincunt  leg-em,  applies  to 
all  contracts,  not  offensive  to  sound  morals,  or  to  positive 
prohibitions  by  the  legislature.  If  a  depositary,  says  this 
learned  writer,  should  specially  contract  to  keep  the  deposit 
safely,  he  might  be  liable  for  ordinary  negligence,  although 
the  law  would  otherwise  hold  him  liable  only  for  gross  negli- 
gence. Upon  this  ground,  proceeds  the  learned  writer  to 
say,  Southcote's  case  may,  perhaps,  be  maintained  to  be 
good  law,  and  not  to  be  liable  to  the  objection  made  against 
it  in  Coggs  v.  Bernard.3  If.  indeed,  it  proceeded  upon  the 
ground  mentioned  by  Lord  Coke,  that  a  bailment  upon  a 
contract  to  keep,  and  to  keep  safely,  is  the  same  thing,  it 
certainly  is  not  law,  and  was  overruled  in  Coggs  v,  Bernard.4 
But  from  the  report  it  would  seem,  that  the  bailment  was 
there  to  keep  safe ;  and  if  so,  then,  upon  that  special  contract, 
the  party  might  have  been  held  responsible,  although  he  would 
not  otherwise  have  been  liable  by  the  general  law.  This 
was  the  doctrine  maintained  by  all  the  Judges  in  Coggs  v. 
Bernard,  which  case  proceeded  mainly  upon  this  ground.5 


1  See  Story  on  Bailm.  $  32.     By  the  Civil  Law,  illud  nulla  pactione  effici 
palest,  ne  dolus preestetur.     Pothier,  Contrat  de  Mandat,  n.  50. 

2  Dig.  Lib.  17,  tit.  1;  Pothier,  Contrat  de  Mandat,  n.  50;  and  see 
Stoiy  on  Bailm.  $  182  a. 

3  Southcote's  case,  4  Co.  R.  83  b. 

4  See  ante,  §  20. 

5  See  Jones  on  Bailm.  42  -  45. 


CH.  H.]  CARRIERS   WITHOUT  HIRE.  41 

In  a  later  case,  the  same  distinction  was  adopted  by  the  Court,1 
in  which  it  was  held,  that  if  a  depositary  should  accept  to 
keep  safely,  he  would  be  responsible  for  losses  by  theft  or 
robbery,  although  he  would  not  otherwise  be  responsible 
upon  the  general  principles  of  law.2  In  a  case  in  Missouri, 
it  has  been  held,  that  where  the  special  promise  was  to  drive 
the  horses  of  another  to  a  distant  market,  and  sell  them  as  he 
would  his  own,  and  the  bailee  is  taken  ill  by  the  way,  and 
so  unable  to  take  charge  and  dispose  of  them  in  person,  he 
may  employ  an  agent  for  such  purpose,  without  incurring 
any  other  liability  than  that  for  gross  negligence ;  and  that, 
under  such  contract,  he  is  not  bound  to  dispose  of  the  horses 
as  a  prudent  man  would  dispose  of  his  own.3 

§  38.  As  to  the  parly  upon  whom  the  burden  of  proof  lies, 
in  an  action  by  the  bailor  against  a  gratuitous  bailee  for  gross 
negligence,  a  regard  must  be  had  to  the  form  of  the  action. 
Where  a  primd  facie  case  of  trover  is  made  out  at  the  trial, 
the  rule  is  different  from  what  it  would  be  in  an  action  of 
assumpsit  or  an  action  on  the  case  founded  on  negligence.  In 
the  latter  actions,  the  plaintiff  must  make  out  his  case,  primd 
facie  as  he  charges  it ;  in  the  former,  he  may  rely  on  an 
apparent  conversion,  or  on  a  demand  and  refusal  of  the 
property,  and  thus  put  the  other  side  on  the  defence.  But 
the  general  principle  of  the  Common  Law  is,  that  every 
man  is  presumed  to  do  his  duty,  until  the  contrary  is  estab- 
lished ;  and  on  this  account,  in  an  action  of  assumpsit,  or 
in  action  on  the  case  founded  upon  negligence,  the  bur- 
den of  proof  is  on  the  plaintiff.4  In  Graves  v.  Tick- 

1  Kettle  v.  Bromsale,  Willes,  R.  118. 

2  Story  on  Bailm.  §  32,  33. 

3  McLean  v.  Rutherford,  8  Missouri,  R.  109. 

4  Story  on  Bailm.  §  213  ;   Williams  v.  East  India  Co.  3  East,  R.  192 
Mr.  Wallace,  in  his  very  learned  note  to  Coggs  v.  Bernard,  (1  Smith,  Lead. 
Cas.  243,  Am.  ed.  1847,)  says,  it  may  not  be  improper  to  note,  that  where 
money  is  the  subject  of  bailment,  assumpsit  is  the  proper  remedy  ;  assump- 
sit in  the  form  of  money  had  and  received,  usually  being,  in  case  of  money, 
a  substitute  alike  for  trespass,  trover,  and  case  ;  though  as  a  substitute  for 

4* 


42  LAW   OF  CARRIERS.  [CH.  II 

nor,1  it  was  held,  that  where  a  person,  as  a  bailee  without 
hire,  received  money  in  a  letter  to  be  delivered  to  another, 
and  there  was  no  evidence  of  the  manner  in  which  the 
package  had  been  disposed  of,  the  most  favorable  construc- 
tion was  to  be  given  for  the  defendant.  In  Beardslee  v. 
Richardson,2  it  was  held,  that  where  a  mandatary  had 
received  a  sealed  letter  with  money  in  it,  to  carry  from 
NCAV  Orleans  to  New  York,  the  plaintiff  was  not  entitled 
to  recover,  without  showing,  either  that  the  letter  had  been 
opened  by  the  mandatary,  or  had  been  lost  by  his  gross 
negligence,  or  that,  on  demand,  he  had  refused  to  deliver  it. 
If  demanded,  the  mandatary  would  be  bound  to  give  some 
account  of  the  loss,  and  to  indemnify  the  plaintiff,  unless  he 
could  show,  that  the  properly  was  lost  without  gross  neg- 
ligence on  his  part.3 


trover,  there  need  be  no  previous  demand.  In  trover,  proof  of  demand  and 
refusal,  throws  upon  the  defendant  the  burden  of  proving,  that  the  pro- 
perty was  lost  or  stolen.  In  case,  the  burden  of  proving  negligence  is  on 
the  plaintiff.  Where  the  goods  have  not  been  returned  or  delivered,  by 
the  defendant,  the  most  convenient  way  for  the  plaintiff  to  proceed,  appears 
to  be,  first,  to  make  a  demand,  and  then  to  bring  trover  and  case ;  the 
demand  and  refusal  will  cause  a  recovery  on  the  former  count,  unless  the 
defendant  prove  a  loss  or  theft ;  and  then  upon  the  latter,  the  plaintiff  will 
recover  if  he  prove  that  negligence  caused  the  loss  ;  but  the  burden  of 
this  is  upon  him.  In  Beekman  w.  Shouse,  5  Rawle  (Penn.)  R.  179,  in 
assumpsit,  against  one  liable  as  a  paid  agent,  it  is  said,  that  the  course  of 
proof  is  similar  ;  that  the  proof  of  contract  and  delivery,  puts  the  defend- 
ant to  prove  a  loss,  and  then  the  plaintiff  must  show  negligence.  And 
see  Clark  &  Co.  v.  Spence,  10  Watts  (Penn.)  R.  335;  and  Story  on 
Bailm.  §  107.  In  Dwight  v.  Brewster,  the  first  count  in  the  declaration 
was  in  trover  ;  the  second  charged  the  defendants  as  common  carriers,  and 
stating  their  undertaking  to  carry  for  the  plaintiff  a  package  for  hire  ;  the 
third  alleged  an  undertaking  on  the  part  of  the  defendants  to  carry  for  a 
reward,  and  charged  them  with  negligence  in  the  transportation,  whereby 
the  package  was  lost.  1  Pick.  (Mass.)  R.  50. 

1  Graves  w.  Ticknor,  6  N.  Hamp.  R.  357. 

2  Beardslee  v.  Richardson,  11  Wend.  (N.  Y.)  R.  25. 

3  In  Stewart  v.  Pratt,  5  Ala.  R.  114,  held,  if  the  bailee,  on  being  ap- 
rized  of  the  loss    of  money  intrusted  to  him,  refuse  to  pay,  or  deny  his 
responsibility,  the  jury  would  be  authorized  to  infer  a  demand  and  refusal. 


CH.  H.]  CARRIERS   WITHOUT  HIRE.  43 

§  39.  If  the  ground  of  the  action  is  for  a  negligent  loss  of 
money,  an  action  for  money  had  and  received  is  not  the 
proper  form.  The  plaintiff  employed  the  defendant,  without 
reward,  to  carry  £45  to  a  person  at  Liverpool.  The  defend- 
ant did  not  deliver  it,  and  afterwards  told  the  plaintiff,  that  he 
had  lost  it  in  a  brothel,  but  would  repay  it  to  him.  There 
was  no  other  evidence  how  the  loss  happened.  In  an  action 
against  the  defendant  for  £45  had  and  received  to  his  use, 
it  was  held,  that  the  action  lay  independently  of  the  promise, 
the  defendant  not  having  paid  over  the  money  or  returned  it 
to  the  plaintiff;  that  if  a  loss  in  the  manner  alleged  had  been 
proved,  the  action  would  have  been  for  gross  negligence,  and 
not  for  money  had  and  received  ;  but  that  the  defendant's 
assertion  was  not  satisfactory  proof  of  his  own  gross  negli- 
gence ;  and  the  case  raised  so  much  suspicion  (said  Little- 
dale,  J.,)  that  the  jury  might  infer  a  misapplication  of  the 
money.  Ch.  J.  Denman  said,  that  if  the  defendant  was  to 
avail  himself  of  his  own  wrong  to  defeat  an  action  which 
would  otherwise  lie,  he  must  give  clear  proof  of  it ;  and  that 
his  own  admissions  were  not  such  proof.1 

§  40.  In  an  action  of  trover,  if  when  the  goods  were  de- 
manded, the  mandatary  should  state,  that  the  property  was 
lost  by  accident,  or  stolen  from  him,  and  should  narrate  all 
the  circumstances  accompanying  the  loss  ;  the  question  would 
then  arise,  whether  they  ought  not  to  be  deemed  a  part  of  the 
case,  so  as  to  entitle  the  mandatary  to  the  benefit  of  the 
statement  at  the  trial,  as  a  part  of  the  res  geslce  at  the  time  of 
the  demand  and  refusal.  Although  he  would  be  so  entitled, 
still  the  jury  would  be  at  liberty  to  disbelieve  the  statement, 
or  to  find  the  mandatary  guilty  of  gross  negligence,  if  the 
circumstances  did  not,  in  their  judgment,  repel  it.2  In  Tomp- 


1  Parry  t».  Roberts,  3  Adol.  &  Ell.  R.  118. 

2  See  note  to  §  213  of  Story  on  Bailm. ;  the  case  of  Doorman  v.  Jenk- 
ins, 2  Adol.  &  Ell.  R.  256,  the  facts  in  which  case  are  stated  ante,  $  33. 
In  Storer  v.  Gowen,   6  Shep.  (Me.)   R.   174,  which  was  an  action   of 


44  LAW   OF   CARRIERS.  [CH.  II. 

kins  v.  Saltmarsh,  this  doctrine  was  established,  in  an  action 
for  negligence  in  the  performance  of  a  gratuitous  undertaking 
to  carry  and  deliver  a  certain  number  of  bank  bills ;  the 
Court  holding,  that  the  circumstances  which  would  naturally 
attend  the  whole  transaction,  and  the  concomitant  declara- 
tions of  a  man  placed  in  the  situation  in  which  the  defend- 
ant stood,  in  such  a  case,  were  of  necessity  proper  evidence. 
Even  in  criminal  proceedings,  the  Court  said,  the  declara- 
tions of  prisoners  have  been  received,  as  in  an  indictment 
for  larceny,  to  explain  their  conduct;  and  the  jury  hear  the 
evidence  and  then  judge  for  themselves,  whether  such  decla- 
rations were  genuine  claims  of  property,  though  mistaken,  or 
made  to  color  a  stealing.  However  good  it  may  be,  there- 
fore, as  a  general  rule,  that  nothing  that  a  man  does  or  says, 
can  be  given  in  evidence  to  support  his  own  cause,  it  has, 
like  other  general  rules  and  positions,  exceptions ;  if  it  had 
not,  it  would  be  better  to  have  no  general  rules.  Duncan,  J., 
who  delivered  the  opinion  of  the  Court  in  this  case,  con- 
cludes as  follows  :  "  I  know  not  how  even  a  careful  and 
attentive  man  could  escape,  if  evidence  such  as  the  plaintiff 
gave,  of  the  bare  delivery  of  the  package,  was  to  charge 
him  with  the  amount  admitted  to  be  lost ;  if  he,  without 
benefit  or  reward,  having  undertaken  to  do  a  favor  for  his 
friend,  could  not  be  discharged  for  the  casualty,  without  direct 
evidence  how  it  arose,  by  some  eye-witness.  No  prudent 
man  ever  would  carry  a  letter  on  these  terms.  There  is  in 
all  these  cases,  I  admit,  a  difficulty,  —  suspicion  will  attach 
—  the  most  upright  man  will  feel  mortification  ;  but  it  is  in- 
consistent with  the  state  in  which  the  law  has  placed  the  vol- 
untary depositary,  who  acts  for  the  benefit  of  another,  to 
cast  upon  him  the  burden  of  showing  exactly,  by  witnesses, 


assumpsit,  to  recover  a  sum  of  money  alleged  to  have  been  inclosed  in  a 
letter,  and  delivered  to  the  defendant  to  be  carried ;  the  Court  held,  that 
the  admissions  of  a  party  are  evidence  to  the  jury  equally  as  well  what 
makes  in  his  favor  as  against  him.  See  also  Graves  v.  Ticknor,  6  New 
Hamp.  R.  537. 


CH.  II.]  CARRIERS   WITHOUT  HIRE.  45 

the  quo  modo  he  lost  it,  when  the  bailor  admits,  that  some- 
how he  did  lose  it.  The  facts  and  circumstances  are  all  for 
the  consideration  of  the  jury.  To  keep  them  from  them,  is 
excluding  the  only  light  which  can  be  shed  on  the  conduct  of 
the  party  charged  with  negligence  alone."  1 

§  41.  In  general,  a  mandatary  can  be  said  to  have  a  special 
property  in  the  thing  bailed  only  when  he  has  incurred 
expenses  about  it,  and,  consequently,  has  a  lien.  But,  even 
when  he  has  no  special  property,  he  may  have  an  action  for 
and  tort  done  to  the  thing  while  in  his  possession  ;  for,  it  is  a 
general  principle  of  the  Common  Law,  that  possession,  with 
an  assertion  of  right,  and,  in  many  cases,  possession  alone, 
is  a  sufficient  title  for  the  maintenance  of  an  action  against  a 
mere  wrong-doer ;  and,  therefore,  if  a  mandatary  deliver 
goods  to  another  person,  and  they  receive  an  injury  for  which 
the  mandatary  would  be  liable  over  to  the  owner,  he  may 
recover  for  his  own  indemnity.2  This  principle,  however, 
seems  in  Miles  v.  Cottle  to  have  been  deemed  inapplicable 
to  the  case  of  a  mandatary  who  had  disobeyed  the  direction 
under  which  a  parcel  had  been  intrusted  to  him,  and  thereby 
had  made  himself  personally  responsible  to  the  owner  ;  first, 
because  (it  was  said)  he  had  no  special  property  in  the  parcel 
which  had  been  delivered  to  him  for  a  purpose  not  fulfilled 
by  him ;  and,  secondly,  because  he  had  deprived  the  defend- 
ants of  the  intended  hire  for  the  carriage  of  the  parcel.3 


•  *  Tompkins  v.  Saltmarsh,  14  S.  &  Rawle  (Penn.)  R.  275.     And  see 
the  same  doctrine  applied  to  pawnees  in  Story  on  Bailm.  $  339. 

2  Story  on  Bailm.  §  150,  152,  §  93 /.     As  to  a  lien,  post,  $  43. 

3  Miles  v.  Cottle,  1  Lloyd  &  Welsh.  R.  353  ;  S.  C.  6  Bing.  R.  740, 
743.     The  plaintiff  in  this  case,  had  received  a  parcel  from  A.,  to  book 
for  London,  at  the  office   of  the  defendant.     Instead  of  doing  so,  the 
plaintiff,  being  about  to  go  to  London  in  the  defendant's  coach,  put  the 
parcel  in  his  own   bag,  containing  his  clothes,  which  was  lost  on  the 
journey.     The  plaintiff  had  a  verdict  for  the  value  of  his  own  clothes. 
But  the  Court  held,  that  he  was  not  entitled  to  any  thing  for  the  loss  of 
the  parcel  intrusted  to  him,  because,  at  the  time,  he  had  no  absolute 


46  LAW   OF  CARRIERS.  [CH.  II. 

§  42.  As  to  the  obligations  of  the  mandator  arising  from 
the  contract  of  mandate,  the  Common  Law  has,  as  yet,  fur- 
nished no  decisions  which  go  to  the  point ;  but  the  doctrines 
of  the  Roman  Law  on  the  point  are  not  unworthy  attention, 
and  have  accordingly  received  the  attention  of  the  learned 
author  of  the  "  Commentaries  on  the  Law  of  Bailments," 
and  who  states  the  Roman  Law  to  be ;  First,  if  the  bailor 
contemplates  any  thing  to  be  done  on  his  goods,  by 'which 
the  mandatary  may  or  must  incur  expenses,  he  is  bound  to 
reimburse  him ;  for  it  can  never  be  presumed,  that  a  gratui- 
tous trust  is  designed  to  be  a  burden  to  the  mandatary.  Se- 
condly, as  to  indemnity  for  incidental  contract  made  by  the 
mandatary.  This  is  obviously  founded  on  the  same  general 
principles  of  justice,  and  the  presumed  intention  of  the 
parties,  as  the  reimbursement  of  expenses.  Thirdly,  another 
question  is,  how  far  the  mandator  is  bound  to  indemnify  the 
mandatary  for  any  losses  or  injuries,  sustained  by  him  in  the 
execution  of  the  trust.  The  general  rule  of  the  Civil  Law 
seems  to  be,  that  the  mandator  is  bound  to  indemnify  the  man- 
datary against  all  losses  and  injuries,  the  proximate  cause  of 
which  can  be  directly  traced  to  the  execution  of  the  mandate  ; 
but  not  for  losses  and  injuries,  of  which  the  mandate  was 
merely  the  occasion.1  How  far,  says  the  learned  author 
above  referred  to,  any  of  these  doctrines  are,  or  would  be, 
adopted  in  our  law,  cannot  be  satisfactorily  answered  by 
adjudged  cases,  for  none  can  be  found.  But  it  is  laid  down 
by  another  late  writer,  that  in  the  Common  Law,  if  the  man- 
datary must  necessarily  incur  expense  in  the  execution  of  the 
commission  intrusted  to  him,  he  is  clothed  with  an  implied 
authority  from  the  mandator  to  defray  such  expenses ;  and 
all  money  necessarily  laid  out  by  him  in  that  behalf,  is  money 
expended  for  the  use  of  the  mandator  at  his  (implied) 
request ;  for  the  recovery  whereof  the  ordinary  action  for 

special  property  in  the  parcel,  as  the  bailment  had  terminated  by  his  own 
misfeasance, 
i  Story  on  Bailm.  $  197,  198,  199,  200. 


CH.  II.]  CARRIERS   WITHOUT  HIRE.  47 

money  paid  is  maintainable  by  the  mandatary.  Thus,  if  a 
party  requests  a  friend l  to  carry  goods  for  him  in  a  stage- 
coach, to  another  town,  for  which  goods  carriage  hire  is  usu- 
ally paid,  a  like  duty  to  pay  the  bill  is  presumed.2 

§  43.  The  French  Law  accords  to  the  mandatary  a  right 
to  detain  the  chattel  until  he  has  received  payment  of  the 
expenses  he  has  incurred  in  the  execution  of  the  trust  con- 
cerning it.3  In  the  Common  Law  no  such  right  exists,  and 
no  lien  is  permitted  to  be  claimed  by  one  man  upon  the 
property  of  another  for  the  expenses  attendant  upon  the 
execution  of  a  gratuitous  commission.4 

§  44.  In  conclusion  of  the  present  chapter,  it  may  be 
proper  to  notice  the  several  reasons  which  have  been  as- 
signed why  actions  at  Common  Law  on  the  contract  of 
mandate,  have  been  uncommon.  The  reason  given  by  Sir 
William  Jones,  is,  that  it  is  very  uncommon  for  a  person 
to  undertake  any  office  of  trouble  without  compensation.5 
"  But,  perhaps,"  says  Story,  "  a  large  survey  of  human  life 
might  have  furnished  a  more  charitable  interpretation  of  this 
absence  of  litigation ;  first,  because,  from  the  great  facilities 
of  a  wide  and  cheap  intercourse  in  modern  times,  there  is  the 
less  reason  to  burden  friends  with  the  execution  of  such 
trusts ;  and  secondly,  because,  in  cases  of  loss,  there  is  an 
extreme  reluctance,  on  the  part  of  bailors,  to  make  their 
friends  the  victims  of  a  meritorious,  although,  it  may  be,  a 
negligent  kindness."  6 


1  The  case  put  by  Story  on  Bailm.  $  197. 

2  Addison  on  Contracts,  p.  849. 

3  Domat,  Lib.  16,  tit.  3 ;  Lib.  1,  tit.  15  ;  Pothier,  Contrat  de  Mandat. 

4  Add.  on  Contr.  850;  Sanderson  v.  Bell,  2  Cr.  &  My.  R.  304.     And 
see  Chapman  v.  Allen,  Cro.  Car.  R.  271 ;  Jackson  v.  Cummins,  5  M.  & 
Welsh.  R.  342  ;  Judson  v.  Etheridge,  1  Cr.  &  My.  R.  746. 

5  Jones  on  Bailm.  57. 

6  Story  on  Bailm.  §  218. 


48  LAW  OF   CARRIERS.  [CH.  III. 


CHAPTER   III. 

OF   CARRIERS    FOR  HIRE,    WHO    ARE   NOT   COMMON   CARRIERS. 

§  45.  IT  is  proposed  to  consider  next  the  liability  of  car- 
riers for  a  reward,  who  are  not  common  carriers.  The 
liability  of  the  mandatary,  or  carrier  without  reward,  it 
appears  by  the  preceding  chapter,  is  derived  from  his  under- 
taking, which,  being  gratuitous,  excuses  him  in  the  absence 
of  that  aggravated  degree  of  negligence,  which  the  writers 
denominate  "  gross"  negligence  ;  but  when  the  liability  of  a 
carrier  arises  from  his  reivard,  and  he  is  not  a  common  car- 
rier, he  is  bound  to  "  ordinary  "  diligence,  and  is  responsible 
for  "  ordinary  "  neglect,  which  is  the  fixed  mode  or  standard 
of  diligence  and  of  neglect.1  The  latter  sort  of  bailment,  it 
has  appeared,  is  called  Locatum  or  hiring,  which  is  always 
for  reward ;  and  is  that  branch  of  it  denominated  Locatio 
operis  mere-turn  vehertdarum  ;  2  and  the  trust  being  reciprocally 
beneficial  to  the  bailor  and  the  bailee,  the  law  exacts  ordi- 
nary diligence  on  the  part  of  the  latter,  and  makes  him 
responsible  for  ordinary  neglect,  and  for  that  only.3  All 


1  See  ante,  §  9,  10,  11. 

2  See  the  different  sorts  of  bailments,  ante,  §  13. 

3  See  ante,  §  11,  15.     There  is  a  marked  difference  in  cases  where 
ordinary  diligence  is  required,  and  where  a  party  is  only  accountable  for 
gross  neglect.     Ordinary  neglect  is  the  want  of  that  diligence,  which  the 
generality  of  mankind  use  in  their  own  concerns;  and  that  diligence  is 
necessarily  required  where  the  contract  is  reciprocally  beneficial.     Per 
Duncan,  J.,  in  Tompkins  v.  Saltmarsh,  14  S.  &  Rawle  (Penn.)  R.  280. 
When  goods  are  delivered  to  a  carrier,  the  implied  contract  is  to  carry 
safely.     Raphael  v.  Pickford,  2  Dowl.  R.   (N.  S)   916.     A  laundress 
sent  linen  which  she  had  washed  to  the  owner,  by  a  carrier  whom  she 


CH.  III.]  PRIVATE   CARRIERS    FOR   HIRE.  49 

depositaries  for  hire  (Locatio  custodies,} l  such  as  warehouse- 
men, wharfingers,  &c.,  who  are  bailees  upon  a  contract  of 
mutual  interest,  stand  upon  the  same  footing  as  persons  con- 
tracting for  the  carriage  of  goods  for  hire,  who  are  not  com- 
mon carriers  :  and  if  they  act  with  ordinary  diligence  and 
good  faith,  they  are  protected.2  The  contract  entered  into 
by  a  booking-office  keeper,  who  takes  parcels  to  be  forwarded 
by  carriers,  is  bound  to  ordinary  diligence,  and  to  that  only, 
for  their  safe  delivery.3  A  booking-office  keeper,  who  also 
kept  a  wine  vault,  was  held  liable  for  the  omission  of  ordinary 
diligence  for  allowing  goods  to  remain  in  front  of  the  bar, 
exposed  to  persons  coming  in  for  liquor,  even  although  they 
were  of  too  large  a  size  to  be  conveniently  taken  into  the  bar, 
behind  the  counter.4  Want  of  ordinary  care  will  render 
liable,  in  Maine,  the  owners  of  a  boom  for  the  loss  of  logs 

secured  thereon.5 

' 

§  46.  The  difference  with  respect  to  the  degree  of  liability, 
between  a  private  carrier  for  hire,  and  a  common  carrier, 
(whose  undertaking  is  always  for  hire,)  is,  that  the  latter  is 
bound  to  deliver  the  goods  intrusted  to  him  against  all  events, 
but  the  acts  of  God  and  the  public  enemy.  The  responsi- 
bility which  is  founded  merely  upon  the  reward,  is  not  incur- 
red when  a  certain  degree  of  diligence  has  been  used,  whereas 
that  which  is  imposed  by  the  Common  Law  upon  the  com- 
mon carrier,  is  derived  mainly  from  his  public  employment, 


paid  ;  the  carrier  having  lost  it,  it  was  held,  that  the  laundress  was  enti- 
tled to  sue  the  carrier  for  the  loss.  Freeman  v.  Birch,  3  Ad.  &  EH.  K. 
(N.S.)  483. 

1  See  ante,  §  14 ;  Jones  on  Bailm.  97. 

2  Jones  on  Bailm.  87  ;  Story  on  Bailm.  §  442  et.  seq.  ;  Thomas  v.  Prov. 
&  Boston  Railr.  Co.  10  Met.  (Mass.)  R.  472;    Foote  t>.  Storrs,  2  Barb. 
(N.  Y.)  R.  326  ;  McHenry  v.  Railr.  Co.,  4  Flarring.  (Del.)  R.  448.    See 
post,  $  75. 

3  Gilbert  v.  Dale,  1  Nev.  &  Per.  R.  22 ;  5  Ad.  &  Ell.  R.  543. 

4  Dover  v.  Mills,  5  C.  &  Payne,  R.  175. 

5  Penobscot  Boom  Corp.  v.  Baker,  4  Shep.  (Me.)  R.  233. 

5 


50  LAW   OF   CARRIERS.  [CH.  III. 

and  is  not  avoided  by  any  quantity  of  diligence.  Another 
distinction  which  has  been  made  between  persons  undertak- 
ing the  carriage  of  goods  for  hire,  and  to  be  responsible  for 
their  safe  delivery,  is,  that  a  private  carrier  is  not  obliged, 
like  a  common  carrier,  to  undertake  in  that  way.  All  per- 
sons who  carry  under  a  special  contract,  as  the  driver  of  a 
stage-coach  occasionally  taking  packages  to  carry  for  com- 
pensation, are  private  carriers.1  Or,  as  in  Satterlee  v.  Groat,2 
a  person  who  sends  his  servant  to  transport  goods  belonging 
to  another  person,  from  one  place  to  another,  with  special 
instructions  not  to  take  the  goods  of  any  other  person,  incurs 
no  other  liability  than  that  of  a  private  carrier  for  hire,  in 
case  of  the  loss  of  the  goods.  But  as  to  who  are  common, 
as  distinguished  from  private,  carriers,  and  as  to  the  peculiar 
character  and  responsibility  of  the  former,  the  reader  is 
referred  to  the  chapters  following;  the  object  at  present 
being  to  consider  the  liability  of  such  persons  only  who  carry 
for  hire,  and  who  are  not  common  carriers.  Any  person 
carrying  for  hire,  who  does  not  come  within  the  definition 
and  explanation  to  be  given  of  a  common  carrier,  is  a  private 
carrier,  and  therefore  bound  to  only  ordinary  diligence.8 

§  47.  Ordinary  diligence,  to  which  a  private  carrier  for 
hire  is  bound,  is  such  diligence  as  every  prudent  man  com- 
monly takes  of  his  own  goods,4  and  ordinary  negligence  is 
therefore  the  want  of  such  diligence.5  As  it  is  ordinarily  a 
good  defence  for  a  private  carrier  for  hire,  that  the  loss  or 
injury  to  the  goods  was  occasioned  by  unavoidable  accident,6 
or  by  such  means  that  he  could  not  have  guarded  against  it 


1  Beekman  v.  Shouse,  5  Rawle  (Penn.)  R.  179;  Sheldon  v.  Robinson, 
7  N.  Hamp.  R.  157. 

2  Satterlee  r.  Groat,  1  Wend.  (N.  Y.)  R.  272. 

3  See  Ross  v.  Hill,  2  Man.  Grang.  &  Scott,  R.  877. 
*  See  ante,  §  6,  9,  11. 

5  See  ante,  §  10. 

6  See  Greenl.  Ev.  §  219. 


CH.  in.]  PRIVATE  CARRIERS  FOR  HIRE.  51 

by  any  ordinary  diligence,1  he  will  not  be  liable  for  any  loss 
by  robbers,  or  from  any  taking  from  him  or  his  servants  by 
force.2  According  to  Lord  Holt,  in  Coggs  v.  Bernard,  if  a 
bailiff  or  factor  carries  goods,  and  is  robbed,  he  is  not  an- 
swerable to  the  owner,  although  he  is  to  be  paid  for  his 
service,  "  because  it  is  only  a  particular  office  and  private 
trust,  and  he  doth  the  best  he  can,  as  the  nature  of  the  thing 
puts  it  in  his  power  to  perform  it."  3  This  doctrine  has  been 
recognized  in  the  modern  case  of  Brind  v.  Dale,4  by  Lord 
Abinger,  who  considers,  that  "  if  a  man  agrees  to  carry  goods 
for  hire,  although  not  a  common  carrier,  he  thereby  agrees  to 
make  good  all  losses  arising  from  the  negligence  of  his  ser- 
vants, although  he  would  not  be  liable  for  losses  by  thieves 
or  by  any  taking  by  force." 

§  48.  But  the  propriety  of  the  distinction  taken  in  the 
Civil  Law  between  a  public  palpable  robbery  by  force,  and  a 
secret  theft  or  purloining  of  goods,  is  obvious.  It  is,  that  in  the 
one  case,  the  bailee  relieved  himself  from  responsibility  for 
the  loss  by  proof  of  the  mere  fact  of  the  robbery  ;  5  it  being 
very  sensibly  considered,  that  individual  vigilance  could  avail 
but  little  against  the  open  attack  of  the  determined  robber.6 
In  the  other  case,  he  was  bound  to  make  good  the  loss, 
unless  he  could  show,  that  he  had  taken  the  greatest  care  of 
the  thing  intrusted  to  him ;  and  that  it  had  been  purloined, 


1  Per  the  Court,  by  Bronson,  J.,  in  Hollister  v.  Newman,  19  Wend. 
(N.  Y.)  R.  239.  And  see  Hodgson  v.  Fullarton,  4  Taunt.  R.  487  ;  Hatch- 
well  v.  Cooke,  6  Ib.  577  ;  Beekman  v.  Shouse,  5  Rawle  (Penn.)  R.  179. 

2  Story  on  Bailm.  §  457. 

3  Coggs  v.  Bernard,  Appx. 

4  Brind  «.  Dale,  8  C.  &  Payne,  R.  207. 

5  Dig.  Lib.  17,  tit.  2,  lex  52,  53;  Inst.  Lib.  3,  tit.  15,  §  2,  3;  cited  in 
Add.  on  Contr.  773. 

6  Adversus  lalrones  parum  prodest  custodia;  adversus  furem  prodesse 
potest  si  quis  advigilet.     Gothofred,  Jur.  Civ.,  cited  in  Jones  on  Bailm. 
44. 


52  LAW    OF    CARRIERS.  [CH.  III. 

notwithstanding  every  precaution  for  its  safety.1  There  are 
cases  in  which  it  has  been  considered,  that,  by  the  Common 
Law,  a  loss  by  secret  purloining  of  goods  in  the  hands  of  a 
carrier  for  reward,  is  prima  facie  evidence  of  a  want  of  ordi- 
nary diligence  in  keeping,  and  this  presumption  the  carrier 
must  rebut  by  showing  that  he  had  observed  ordinary  diligence, 
or,  in  other  words,  that  he  had  taken  all  such  precautions  as 
appear  to  be  necessary  to  guard  against  the  theft.  In  an 
action  against  the  commander  of  a  ship  of  war  for  the  loss 
of  a  quantity  of  bullion,  the  plaintiff  declared,  that  in  consid- 
eration that  he  had  caused  to  be  delivered  to  the  defendant 
certain  casks  of  dollars,  to  be  carried  on  a  voyage  from  the 
river  Plate  to  London  upon  freight  for  certain  hire  and 
reward,  the  defendant  undertook  to  take  care  of  them,  and 
assigned  for  breach,  that  he  took  so  little  care  of  them,  that 
they  were  lost ;  and  it  appeared  on  the  trial,  that  on  the 
arrival  of  the  ship  in  the  Thames,  two  of  the  casks  had  been 
opened  and  plundered  by  the  crew ;  it  was  considered,  that 
the  very  occurrence  of  the  loss  was  prima  fade  evidence  of 
negligent  keeping  on  the  part  of  the  defendant,  and  it  was 
held,  that  he  was  responsible  for  the  loss.2 


1  Ad  casus,  autem,  fortuitos  non  sunt  referendi  illi  casus  qui  cum  culpa 
conjunct!  esse  solent;  cujusmodi  sunt/wrta.     Quamobrem,  qui  rera  furto 
amissam  dicit,  si  ditigentiam  suam  probare  debet.     Vin.  Com.  ad  Inst.  lib. 
3,  tit.  15,  $  5;  Pothier,  Pret.  a  Usage,  art  53  ;  Robinson  v.  Ward,  Ry. 
&  Mood.  R.  276  ;  and  see  Add.  on  Contr.  773. 

2  Hodgson  v.  Fullarton,  4  Taunt.  R.  787  ;  and  see  also  Hatchwell  v. 
Cooke,  6  Ib.  577.     Sir  William  Jones  has  given  an  opinion,  that  a  loss 
by  private  theft  is  presumptive  evidence  of  ordinary  neglect.     Jones  on 
Bailm.  38,  40,  66,  77,  109.     But  Story  has  endeavored  to  prove,  that  the 
Common  Law  warrants  no  such  presumption  as  Sir  William  Jones  sup- 
poses.    "Abstractedly  speaking,"  says  he,  "there  is  nothing  in  the  case 
of  theft  from  which  we  have   a  right  to  infer,  that,  because  a  loss  has 
happened  by  it,  there  must  have  been  some  neglect  (Vere  v.  Smith,  1 
Vent.  121  ;  S.  C.  2  Lev.  3.)     On  the  contrary,  no  degree  of  vigilance 
will  always  secure  a  party  from  losses  by  theft.     A  store  may  be  broken 
open  however  securely  locked ;  a  person  may  be  robbed  while  riding  in  a 
stage-coach,  or  while  asleep ;  a  servant  may  be  faithless,  and  betray  the 


CH.  III.]  PRIVATE   CARRIERS    FOR   HIRE.  5 

§  49.  It  is  not  only  in  the  case,  as  in  the  above  case,  o 
the  carriage  of  merchandise  on  the  high  seas,  that  the  loss  o 
goods  in  a  port  or  harbor,  affords  a  prima  fade  presumption 
of  negligence  and  want  of  care,  and  that  the  undertaker  of 
the  work  of  carrying,  in  order  to  escape  from  responsibility 
in  respect  of  such  loss,  must  prove  that  he  had  taken  proper 
care  of  the  goods  intrusted  to  him,  and  must  show,  that  the 
loss  was  occasioned  by  a  forcible  robbery,  which  he  could 
not  resist ;  but  in  the  case  of  the  carriage  of  valuable  chat- 
tels by  land,  the  person  who  receives  them  to  be  carried  by 
him  for  hire,  cannot  set  up  a  mere  loss  of  the  property  by  the 
way,  as  an  answer  to  an  action  for  the  non-delivery  of  them 
according  to  his   undertaking.      Thus  in  an   ancient   case, 
where  the  declaration,  in  an  action  of    assumpsit,  alleged, 
that  the  plaintiff  delivered  to  the  defendant  ,£3,  to  be  carried 


confidence  reposed  in  him  ;  a  person  may  be  seized  with  a  sudden  fit,  or 
alienation  of  mind,  and  the  theft  committed  without  any  consciousness  on 
his  part.  In  these  and  in  many  other  cases  there  would  not  be  any  pre- 
sumption of  neglect.  And  the  Civil  Law  itself  supposes,  that,  in  such 
cases,  the  bailee  might  repel  the  imputation  of  negligence.  By  our  law, 
in  many  cases,  a  bailee  is  excusable  when  the  loss  is  by  theft ;  but  never 
when  that  theft  is  occasioned  by  gross  negligence.  So  long  ago  as  the 
reign  of  Edward  the  Third  (29  Assisarum,  28,)  it  was  held,  that,  if  a 
person  bail  his  goods  to  keep,  and  they  are  stolen,  he  is  excused.  The 
reasoning  of  the  Court  in  Coggs  v.  Bernard  shows  that  the  Court  did  not 
consider  theft  as  prima  fade  presumptive  of  negligence.  In  short,  our 
law  considers  theft,  like  any  other  loss,  to  depend  for  its  validity  as  a 
defence  upon  the  particular  circumstances  of  the  case,  and  to  be  governed 
by  the  general  nature  of  the  bailment,  and  the  responsibility  attached 
thereto.  It  neither  imputes  the  theft  to  the  neglect  of  the  party,  nor,  on 
the  other  hand,  exempts  him  from  responsibility  from  that  fact  alone.  But 
it  decides  upon  all  the  circumstances,  as  leading  to  the  conclusion,  that 
there  has  or  has  not  been  a  due  degree  of  care  used."  Finucane  v.  Small, 
1  Esp.  N.  P.  C.  315  ;  Story  on  Bailm.  §  39.  Now,  it  may  be  observed, 
that  the  concluding  remark,  which  is  a  summary  of  the  argument  preceding 
it,  expresses  Sir  W.  Jones's  opinion,  with  which  also  the  whole  argument 
so  well  agrees,  that  it  is  difficult  to  discover  any  difference  between  them. 
The  difference,  if  any,  is  at  most  merely  formal.  See  note  to  Theobald's 
edition,  Jones  on  Bailm.  p.  43. 
5* 


54  LAW   OF   CARRIERS.  [CH.  HI. 

to  an  inn,  in  Southwark  ;  that  the  defendant,  in  consideration 
of  the  premises,  and  for  that  the  plaintiff  did  undertake 
"  reasonably  to  content  him  for  the  carriage,"  promised 
safely  to  convey  it  thither,  and  deliver  it  at  the  said  inn  to  the 
plaintiff,  but  that  he  had  not  done  so ;  it  was  held,  that  the 
defendant,  who  had  accepted,  the  money  to  be  carried,  was 
liable  upon  such  a  promise,  although  he  was  not  a  common 
carrier,  and  although  no  sum  certain  had  been  agreed  to  be 
paid  him  as  the  price  of  the  carriage.1  Thus  also,  in  a  very 
modern  case,  where  a  traveller  hired  a  cab  for  the  conveyance 
of  himself  and  his  luggage  to  the  Great  Western  Railway 
station  at  Paddington,  and  the  luggage  was  placed  on  the 
outside  of  the  cab,  but  on  the  arrival  of  the  vehicle  at  the 
railway  station,  a  portion  of  it  was  found  to  be  missing ;  it 
was  held,  that  the  law  would  imply  from  the  acceptance  of 
the  luggage  by  the  cabman  to  be  carried,  together  with  the 
passenger,  for  hire,  a  promise  from  him  "  safely  and  se- 
curely "  to  carry  it,  and  that  he  was  responsible  for  the 
portion  of  it  lost  by  the  way.2 

§  50.  The  very  occurrence  of  loss  or  damage  to  the  goods 
delivered  to  a  private  bailee  for  hire,  seems,  therefore,  to  be 
cogent  evidence  of  want  of  care.  Thus,  where  a  puncheon 
of  rum  was  staved  by  the  servants  of  the  defendant  whilst 
it  was  being  lowered  into  the  hold  of  a  vessel,  and  the  con- 
tents were  scattered  and  lost,  the  very  occurrence  of  the 
disaster  was  considered  to  be  an  irresistible  proof  of  negli- 
gence in  the  execution  of  the  work.3  In  Mackenzie  v.  Cox, 
at  Nisi  Priiis,4  it  was  held,  that  if  A  place  a  dog  with  B, 
and  the  dog  be  received  by  B  to  be  kept  by  him  for  reward, 


1  Rogers  v.  Head,  Cro.  Jac.  R.  262. 

2  Ross  v.  Hill,  15  Law  J.,  N.  S.  (C.  P.)  182 ;  S.  C.  3  Dowl.  &  L.  R. 
788. 

3  Goff  v.  Clinkard,  cited  1  Wils.  R.  283;  and  see  Coggs  v.  Bernard, 
Appx. 

4  Mackenzie  v.  Cox,  9  C.  &  Payne,  R.  632. 


CH.  III.]  PRIVATE  CARRIERS  FOR  HIRE.  55 

to  be  paid  to  him  by  A,  B  is  not  answerable  for  the  loss  of 
the  dog  if  he  took  reasonable  care  of  it ;  but  if  the  dog  be 
lost,  the  onus  lies  on  B  to  acquit  himself  by  showing  that  he 
was  not  in  fault  with  respect  to  the  loss. 

§  51.  But  in  most  cases,  the  question  of  ordinary  negli- 
gence is  more  a  question  of  fact  to  be  determined  by  the  jury, 
than  of  law  ; l  and,  as  has  been  fully  explained,  depends 
much  upon  particular  facts  and  circumstances,  and  upon  the 
customs  and  habits  of  the  age  or  country,  the  nature  and 
value  of  the  property,  &c.2 

§  52.  Agisters  of  cattle,  like  private  carriers  for  hire,  come 
within  the  rule  of  responsibility  of  ordinary  negligence  ; 3  and 
very  slight  evidence  of  neglect  has  been  sufficient  to  induce 
juries  to  return  verdicts  in  favor  of  those  who  have  sought 
compensation  for  the  loss  of  cattle  delivered  to  bailees  to  be 
kept  for  hire.  Thus,  where  the  defendant,  a  farmer,  had 
received  the  plaintiff's  horse  to  agist  for  a  certain  price,  and 
the  horse  strayed  away  and  was  lost,  and  never  after  heard 
of,  and  the  plaintiff  gave  evidence  of  the  gates  having  been 
occasionally  seen  left  open,  and  the  fences  being  in  part  out  of 
order,  but  it  did  not  appear,  that  the  horse  had  strayed  through 
any  defect  in  the  fences,  or  through  any  of  the  gates  left 
open  ;  the  jury,  nevertheless,  returned  a  verdict  against  the 
defendant  for  the  full  value  of  the  horse.4 

§  53.  In  the  case  of  Beck  v.  Evans,5  the  plaintiff  had  sent 
a  cask  of  brandy  by  the  defendant's  wagon  from  Shrewsbury 
to  London.  Before  the  wagon  reached  Birmingham,  the 

1  As  in  the  question  of  gross  negligence,  see  ante,  §  22,  27,  28,  29. 

2  See  ante,  §  7,  8,  11,  16  ;  Walker  v.  Jackson,  10  M.  &  Welsh.  R.  161 ; 
Green  «.  Hollingsworth,  5  Dana,  (Ken.)  R.  173. 

3  Story  on  Bailm.  §  443  ;  Jones  on  Bailm.  91,  92. 

4  Broadwater  v.  Blot,  Holt,  Ni.  Pri.  R.  547.     And  see  ante,  §  21  ;  and 
Mosley  v.  Fosset,  1  Roll.  Abr.  4,  per  Popham,  C.  J. 

5  Beck  v.  Evans,  16  East,  R.  244. 


56  LAW   OP   CARRIERS.  [CH.  in. 

cask  was  leaking  fast,  and  the  driver  was  informed  of  it ;  he 
delayed  three  hours  at  Birmingham,  without  attempting  to 
stop  it,  passed  through  Wolverhampton,  where  he  made  some 
stay,  and  at  the  next  stage  beyond  Wolverhampton,  having 
some  parcels  to  deliver,  he  took  the  cask  out,  and  the  remain- 
der of  the  brandy  was  saved.  It  was  left  to  the  jury  to  con- 
sider, whether  the  injury  arose  from  the  negligence  of  the 
defendant's  servant,  the  wagoner,  in  not  examining  the  cask 
after  he  was  informed  of  its  leaky  state,  at  either  of  the  places 
where  he  halted  ;  which  being  found  in  the  affirmative,  a 
verdict  was  taken  for  the  full  amount  of  the  loss.  A  rule  to 
set  aside  this  verdict  on  the  ground  of  the  misdirection  of  the 
Judge,  was  moved  for,  and  refused,  in  the  Court  of  King's 
Bench. 

§  54.  In  England,  at  least,  the  doctrine  is  clearly  settled, 
that  a  common  carrier  may  limit  the  extraordinary  liability 
which  the  law  imposes  upon  him  as  such,  by  a  special  accept- 
ance that  he  will  not  be  liable,  or  by  a  public  notice  to  that 
effect,  of  which  the  owner  of  the  goods  has  knowledge  ;  and 
in  such  cases,  the  common  carrier  descends  to  the  situation 
of  a  private  carrier  for  hire,  and  it  is  therefore  enough  to 
prove  ordinary  negligence,  to  render  him  liable  in  case  the 
goods  are  lost  or  damaged  in  consequence.1  In  a  case  in 
the  Exchequer,  the  defendants,  who  were  the  proprietors  of 
a  public  stage  coach,  and  had  published  the  usual  notice 
limiting  their  liability  as  common  carriers,  received  from  the 
plaintiff  a  valuable  bank  parcel,  to  be  conveyed  from  Hert- 
ford to  Brecon,  for  which  they  were  paid  the  usual  hire. 
When  the  coach  arrived  at  Brecon,  the  driver  was  in  liquor, 
and  although  the  entry  in  the  way-bill  was  known  to  the 
book-keeper,  no  search  or  inquiry  was  made  for  the  parcel, 
and  it  was  in  consequence  lost.  The  jury  having  found, 


i  Wild  v.  Pickford,  8  M.  &  Welsh.  R.  461,  and  Hinton  v.  Dibbin,  2 
Adol.  &  Ell.  R.  646. 


CH.   in.]  PRIVATE   CARRIERS   FOR  HIRE.  57 

that  there  was  gross  negligence  on  the  part  of  the  defend- 
ants, they  forfeited  the  benefit  of  the  notice,  and  were 
obliged  to  make  good  the  whole  loss.  Baron  Graham  said, 
that  he  "  perfectly  agreed  with  the  counsel  for  the  defend- 
ants, that  they  would  not  have  been  liable,  if  ordinary  dili- 
gence had  been  used  ; "  so  that  it  was  for  the  omission  of 
this  diligence,  (which  is  the  definition  already  given  of  ordi- 
nary neglect,1)  that  made  them  liable.2 

§  55.  In  Smith  v.  Home,3  a  parcel  had  been  sent  from 
Worcester  to  London,  by  the  defendant's  coach.  It  arrived 
in  London,  and  was  taken  from  the  defendant's  office  in  a 
cart,  under  the  direction  of  one  person  only,  (it  being  the 
usual  practice  to  employ  two  persons  for  that  purpose.) 
This  man  left  the  cart  unprotected  in  the  street,  while  he 
went  to  different  houses  to  deliver  other  packages.  Notwith- 
standing the  notice  of  the  defendant  as  a  common  carrier, 
he  was  held  liable,  like  a  private  carrier  for  hire,  for  the 
full  value. 

§  56.  It  seldom  happens,  that  persons  undertake  the  car- 
riage of  goods  for  hire,  who  are  not  common  carriers,  and 
the  rule  in  respect  to  common  carriers,  is,  as  has  already 
been  stated,  that  they  are  not  excused  in  case  of  loss  of,  or 
injury  to  the  goods,  except  by  the  act  of  God  or  the  public 
enemy.  But  if  the  loss  or  injury  by  such  means,  is  con- 
duced by  their  negligence  or  want  of  skill,  or  by  insufficiency 
of  vehicle,  they  do  not  come  within  those  two  exceptions. 
Many  of  the  authorities,  therefore,  which  will  be  cited,  in  a 
subsequent  chapter  on  the  responsibility  of  common  carriers,4 
are  illustrative  of  the  general  doctrine  of  liability  in  these 


1  Ante,  §  10. 

2  Bodenham  v.  Bennett,  4  Price,  R.  31. 

3  Smith  v.  Home,  8  Taunt.  R.  144  ;  5  B.  &  Aid.  R.  57. 

4  Chap.  VI. 


58  LAW   OF   CARRIERS.  [CH.  HI. 

cases,  and,  therefore,  they  will  be  found  to  illustrate  the  law 
applicable  to  private  carriers  for  hire. 

§  57.  It  is  a  well  settled  principle,  that  if  the  owner  of  the 
goods  in  the  hands  of  a  private  bailee,  should  in  any  way 
conduce  to  the  loss,  or  the  loss  is  as  likely  to  have  arisen 
from  the  misconduct  of  the  owner,  or  his  want  of  care,  the 
carrier  is  not  responsible  for  the  loss.  This  is  a  rule  which 
of  course  should  apply  to  all  bailees  for  hire,  and  has  in  fact 
been  applied  to  a  warehouseman.  Thus,  where  a  quantity 
of  ginseng  contained  in  a  box  was  deposited  by  the  plaintiff 
in  the  defendant's  warehouse,  and  the  plaintiff  was  in  the 
habit  of  resorting  to  the  box,  and  ordering  the  lid  to  be  taken 
off  for  the  purpose  of  showing  the  ginseng  to  expected  pur- 
chasers, who  came  to  the  warehouse  to  view  it,  on  the  invi- 
tation of  the  plaintiff,  and  rats  got  into  the  box  and  destroyed 
the  ginseng ;  it  was  held,  that  the  defendant,  the  warehouse- 
man, was  not  responsible  for  the  loss.1  On  the  same  prin- 
ciple, if  the  owner  of  the  goods  in  the  hands  of  a  private 
carrier  accompanies  the  goods  to  take  care  of  them,  and  is 
himself  guilty  of  negligence,  by  which  the  goods  are  lost ;  or 
if  there  is  as  much  reason  to  attribute  the  loss  to  the  negli- 
gence of  the  one  party  as  the  other,  the  carrier  is  not  liable.2 
In  Whalley  v.  Wray,3  the  damage  complained  of  happened 
distinctly  by  the  owner's  neglect.  This  was  an  action  of 
assumpsit  against  the  defendant,  as  a  lighterman,  for  damage 
done  to  the  plaintiff's  goods,  which  had  been  intrusted  to  him 
to  be  deposited  in  the  plaintiff's  warehouse  ;  and  the  facts  of 
the  case  were,  thaj  before  the  goods  could  be  permitted  to  be 

1  Cailiff  v.  Danvers,  1  Peake,  N.  P.  C.  155.     As  to  destruction  caused 
by  rats,  see  post ,  Chap.  VI.     A  carrier  for  hire,  who  is  also  a  warehouse- 
man, may  be  responsible  in  the  latter  character,  for  the  loss  of  the  goods 
after  he  has  deposited  them  in  his  warehouse.     Cairns  v.  Robins,  8  M.  & 
Welsh.  R.  258. 

2  Per  Lord  Abinger,  in  Brind  v.  Dale,  8  C.  &  Payne,  R.  207  ;  and  see 
Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  417. 

3  Whalley  v.  Wray,  3  Esp.  R.  74. 


CH.  III.]  PRIVATE   CARRIERS    FOR    HIRE.  59 

landed,  it  was  necessary  to  present  a  petition  to  the  commis- 
sioners of  the  customs,  who  refer  it  to  the  land  surveyor,  upon 
whose  report  the  goods  are  permitted  to  be  landed.  A  peti- 
tion had  been  presented  by  S.,  who  was  the  custom-house 
agent,  to  the  plaintiff;  but  no  report  having  been  made  of 
it,  the  land  surveyor  refused  to  permit  the  goods  to  be  land- 
ed ;  in  consequence  of  which,  they  remained  in  the  lighter 
undischarged,  where  they  received  the  damage  for  which  the 
action  was  brought.  The  presenting  of  the  petition,  &c. 
was  usually  done  by  the  custom-house  agent  of  the  party  to 
whom  the  goods  belonged,  and  was  not  usually  done  by  the 
lighterman.  By  Lord  Eldon  :  "  To  entitle  the  plaintiff  to 
recover,  it  must  appear  that  the  loss  happened  by  the  neglect 
of  doing  that  which  was  the  regular  and  common  duly  of 
the  defendant.  The  law  raises  no  presumption  of  what  is 
his  duty  ;  that  is  a  matter  of  evidence  ;  here  it  is  in  evidence, 
that  the  presenting  the  petition,  and  the  subsequent  proceed- 
ings, was  the  business  of  the  custom-house  agent  of  the  plain- 
tiff, not  of  the  lighterman  ;  if  there  had  been  any  contract, 
or  undertaking,  on  the  part  of  the  lighterman,  by  the  neglect 
of  which  the  goods  were  spoiled,  it  should  have  been  the 
object  of  a  special  count ;  the  plaintiff  has  relied  on  the 
general  liability  of  the  defendant,  without  making  it  out  in 
evidence,  that  it  was  the  duty  of  the  defendant  to  have  done 
that,  from  the  neglect  of  which  the  loss  has  arisen."  But 
whether  the  loss  did  proceed  from  the  negligence  of  the 
owner  of  the  goods,  or  whether  it  may  have  so  proceeded, 
may  sometimes  be  a  question  to  be  submitted  to  the  jury, 
with  the  circumstances  attending  the  particular  case.1 

§  58.  A  bailee  for  reward  is  liable  for  injury  to  goods  occa- 
sioned by  his  negligence,  although  it  appear  that  after  thus 
happening  of  the  injury,  the  goods  were  destroyed  without 
his  fault,  and  that  they  must  have  been  so  destroyed,  even  if 


Bowman  v.  Teall,  23  Wend.  (N.  Y.)  R.  306. 


60  LAW   OF   CARRIERS.  [CH.  III. 

no  damage  had  previously  occurred.  In  an  action  on  the 
case  against  a  warehouseman,  it  appeared  on  the  trial,  that 
several  boxes  of  furniture,  clothing,  &c.  belonging  to  the 
plaintiff,  were  deposited  with  the  defendant,  a  warehouse- 
man and  oil  merchant,  to  be  stored  for  hire.  The  goods 
were  placed  in  a  lower  room  of  the  defendant's  store,  and 
while  remaining  there  were  seriously  injured  by  the  drippings 
of  the  oil  from  leaky  casks  in  the  second  story.  Afterwards 
the  goods  were  destroyed  by  a  sudden  freshet,  which  caused 
the  water  of  the  river  near  to  which  the  warehouse  stood, 
to  rise  and  flow  into  the  room  where  they  were  deposited. 
Every  exertion  was  made  by  the  defendant's  servants  to  save 
the  goods  from  injury.  It  was  held  by  the  Court,  that  the 
defendant  was  no  more  released  from  his  liability  for  the  injury 
done  by  the  oil,  through  his  negligence,  before  the  flood,  than 
he  would  have  been,  under  like  circumstances,  if  he  had  care- 
lessly permitted  the  goods  to  be  stolen  or  burned.  In  such  a 
case,  he  might  have  contended  with  as  much  propriety  as  in 
the  case  in  question,  that  he  ought  not  to  be  held  responsible 
for  the  consequences  of  his  own  neglect,  because  the  goods 
would  have  been  destroyed  by  the  flood,  if  no  loss  or  damage 
had  previously  occurred.  It  could  not  be  denied,  that  a  cause 
of  action  to  recover  the  full  amount  of  damages  that  had 
already  been  sustained,  existed  before  and  at  the  time  of  the 
destruction  by  the  flood  ;  and  unless,  the  Court  held,  the 
defendant  could  find  some  principle  which  would  enable  him 
to  plead  the  flood  in  bar  of  an  action  of  his  own  previous 
wrong,  his  liability  must  continue.  The  flood  might  excuse 
the  defendant  for  injuries  happening  through  its  agency,  but 
nothing  further.1 

§  59.  Although  the  degree  of  care  required  of  a  private 
person  who  undertakes  the  carriage  of  goods  for  hire,  ex- 
tends only  to  the  responsibility  for  ordinary  negligence,  yet 
that  responsibility  may  be  increased  or  diminished  by  special 

i  Powers  v.  Mitchell,  3  Hill  (N.  Y.)  R.  545. 


CH.  III.]  PRIVATE   CARRIERS   FOR  HIRE.  61 

contract.^  In  the  first  place,  it  may  be  increased,  so  as  to 
render  the  carrier  liable  to  the  same  extent  even  as  a  com- 
mon carrier,  by  his  particular  warranty.  In  Robinson  v. 
Dunmore,2  the  plaintiff,  an  upholsterer,  delivered  to  the 
defendant  to  carry  for  hire,  with  a  horse  and  cart,  some 
furniture  into  the  country  ;  and  the  plaintiff  having  observed, 
that  the  tarpaulin  which  the  defendant  had  brought  for  the 
purpose  of  covering  the  cart  was  too  small,  the  defendant 
said,  "  I  will  warrant  the  goods  shall  go  safe."  In  the  course 
of  the  journey  the  goods  were  damaged  by  rain,  and  a  ver- 
dict was  found  for  the  plaintiff,  under  the  direction  of  Lord 
Elden,  Ch.  J.  On  a  motion  that  the  verdict  might  be  set 
aside  and  a  nonsuit  entered,  the  verdict  was  held  right. 
Heath,  J.  observed  :  —  "  The  defendant  in  this  case  is  not 
charged  as  a  common  carrier ;  he  is  charged  on  a  special 
undertaking;  and  the  jury  have  found  on  good  grounds,  that 
the  undertaking  stated  in  the  declaration  was  made  by  the 
defendant.  They  had  decided,  upon  considering  the  whole 
transaction,  that  the  words  used  by  the  defendant  amounted 
to  a  warranty,  and  we  cannot  say  that  they  have  done 
wrong."  Chambre,  J.  considered  it  a  very  clear  case,  and 
said  :  —  "  The  defendant  is  not  a  common  carrier  by  trade, 
but  has  put  himself  into  the  situation  of  a  common  carrier  by 
his  particular  warranty"  It  was  further  held,  that  the  cir- 
cumstance that  the  plaintiff  sent  one  of  his  own  servants  in 
the  defendant's  cart  to  look  after  the  goods,  made  no  differ- 
ence ;  as  it  was  more  for  the  plaintiff's  interest  that  the  pro- 
perty should  not  be  lost,  than  that  he  should  have  an  action 
against  the  carrier.3  In  the  second  place,  the  implied  liability 

1  See  on  this  subject,  ante,  fy  37 ;  Jones  on  Bailm.  97  ;   and  see  the 
Civil  Law  compared  with  the  Common  Law  on  the  subject,   Story  on 
Bailm.  §  33,  34,  35,  $  68  to  74  ;  Brind  v.  Dale,  8  Car.  &  Payne,  R.  207  ; 
post,  Chap.  VII.  as  to  the  limitation  of  a  common  carrier's  liability  by 
special  contract. 

2  Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  417. 

3  And  see  Cayle's  case,  8  Co.  R.  33.     When  the  law  creates  a  duty  or 
charge  and  the  party  is  disabled  to  perform  it,  without  any  default  in  him, 

6 


62  LAW   OP   CARRIERS.  [CH.  HI. 

of  a  private  carrier  for  ordinary  diligence,  may  be  diminished, 
by  special  agreement  or  acceptance.  In  Alexander  v.  Green,1 
it  was  held,  that  a  contract  to  tow  a  boat,  "  at  the  risk  of  the 
master  and  owners  thereof,"  did  discharge  the  paid  under- 
taker from  liability,  for  every  risk  arising  from  a  want  of 
ordinary  skill ;  but  that  no  man  could,  by  any  contract,  ex- 
empt himself  from  liability  for  his  fraudulent  acts.2  Indeed 
there  is  no  reason  why  bailees,  (at  least  other  than  common 
carriers,)  may  not  contract  either  for  a  larger  or  a  more 
restricted  responsibility  than  that  which  the  law  imposes  upon 
them  in  the  absence  of  any  special  contract.  They  may 
become  insurers  against  all  possible  hazards,  or  they  may 
say  we  will  answer  for  nothing  but  a  loss  happening  through 
fraud,  or  want  of  good  faith.3  Where  the  defendants  con- 
tracted for  hire  to  take  a  vessel  through  the  ice  out  of  the 
harbor  of  B.,  and  there  was  no  express  agreement,  that  they 
should  be  responsible  for  any  loss  or  injury  which  might 
happen,  if  the  vessel  was  not  carried  through  in  safety,  the 
defendants  were  bound  to  reasonable  diligence.4 

§  60.  But  even  an  express  promise  by  a  private  carrier  to 


and  has  no  remedy  oveir,  then  the  law  will  excuse  him.  But  when  a  party, 
by  his  own  contract,  creates  a  duty  or  charge  upon  himself,  he  is  bound  to 
make  it  good,  notwithstanding  any  accident  by  inevitable  necessity.  See 
opinion  of  Rogers,  J.,  in  Hand  v.  Baynes,  4  Whart.  (Penn.)  R.  214  ; 
Alleyn,  R.  27;  Hadley  v.  Clark,  8  T.  R.  259;  Brecknock  &  Aberga- 
venny  Canal  Navigation  (case  of,)  6  T.  R.  750. 

1  Alexander  v.  Green,  3  Hill  (N.  Y.)  R.  9. 

2  See  ante,  §  37,  and  as  to  fraud,  see  ante,  §  10,  35. 

3  Wells  v.  Steam  Navigation  Co.   2  Comst.  (N.  Y.)  R.  204.     The 
responsibility  of  a  public  receiver  depends  on  his  special  contract,  and  not 
on  the  law  of  bailments  ;  and  in  a  case  where  his  special  contract  was  to 
pay  over  the  amount  received,  it  was  held  to  be  no  defence  by  his  surety 
that  the  money  was  stolen,  though  the  jury  find  it  was  kept  as  a  prudent 
man  would  keep  his  own  funds.      Commonwealth  v.   Comly,  3  Barr. 
(Tenn.)  R.  372. 

4  Penn.  Del.  and  Md.  Steam  Nav.  Co.  r.  Dandridge,  8  G.  &  Johns. 
(Md.)  R.  248. 


CH.  III.]  PRIVATE   CARRIERS   FOR  HIRE.  63 

carry  goods  safely,  is  but  the  undertaking  implied  by  law  to 
carry  them  free  from  ordinary  negligence,  and  does  not  insure 
against  losses  by  robbers  or  any  taking  by  force.1  Blackstone 
lays  down  the  rule,  that  "  if  the  bailee  undertakes  specially  to 
keep  the  goods  safely  and  securely,  he  is  bound  to  the  same 
care  as  a  prudent  man  would  take  of  his  own  ;  "  2  that  is,  he 
is  bound  to  ordinary  diligence.  Indeed  the  words  "  safely 
and  securely  "  are  always  to  be  construed  with  reference  to 
the  promise  implied  by  law  from  the  peculiar  relation  of  the 
parties,  and  not  in  their  more  literal  sense.  In  assumpsit 
against  a  cab  proprietor,  the  declaration  stated,  that  the 
plaintiff  hired  the  vehicle,  and  that  in  consideration  of  the 
premises,  and  that  the  plaintiff  with  his  luggage  would 
become  a  passenger  and  of  a  certain  reward,  the  defendant 
promised  the  plaintiff  to  carry  and  convey  him  and  his  lug- 
gage "  safely  and  securely,"  from  &c.  to  &c.,  and  alleged  a 
loss  of  part  of  the  luggage  by  the  negligence  of  his  servant. 
It  was  held,  that  the  declaration  was  sufficient  to  charge  the 
defendant  for  a  breach  of  his  implied  duty  to  use  an  ordinary 
degree  of  care,  the  words  "  safely  and  securely,"  not  neces- 
sarily importing  a  more  extended  liability.3  In  this  case 
Tindal,  C.  J.  said,  that  it  could  only  be  argued  and  inferred 
from  the  cases,  that  "  we  are  to  construe  these  words  '  salvo 
et  secure '  with  reference  to  the  duty  or  the  promise  implied 
by  law  from  the  particular  position  and  relation  of  the  parties, 
and  not  in  the  stricter  sense  contended  for  on  the  part  of  the 
defendant.  In  the  present  case,  the  plaintiff  hired  a  cab  to 
convey  himself  and  his  luggage  to  a  certain  place.  The 


1  Story  on  Bailm.  $  457,  §  33,  and  ante,  §  20,  37. 

2  2  Black.  Comra.  452.     The  learned  Judge,  who  delivered  the  opinion 
of  the  Court  in  Foster  v.  Essex  Bank,  16  Mass.  R.  479,  seemed  to  think, 
that  there  is  much  to  warrant  the  suggestion,  that,  in  a  case,  where  the 
bailment  is  to  keep  safely,  the  depositary  would  not  be  liable  for  a  loss  by 
theft,  unless  it  should  arise  from  his  own  negligence  and  want  of  due 
diligence  and  care  ;  and  see  Whitney  v.  Lee,  8  Met.  (Mass.)  R.  91. 

3  Ross  v.  Hill,  2  Man.  Grang.  &  Scott,  R.  877. 


64  LAW   OF   CARRIERS.  [CH.  III. 

undertaking  charged  in  the  declaration, '  safely  and  securely  ' 
to  convey  the  plaintiff  with  his  luggage  to  his  destination, 
means  no  more  than  safely  and  securely  with  reference  to  the 
degree  of  care  ivhich,  under  the  circumstances,  the  law  required 
of  the  defendant ;  that  is,  that  he  shall  use  such  a  reasonable 
degree  of  care,  that  the  plaintiff  shall  incur  no  damage  or  loss 
through  his,  the  defendant's,  negligence  or  default.  If  it  had 
appeared,  that  the  defendant  was  a  common  carrier,  his  duty 
would  have  been  to  carry  and  deliver  safely,  at  all  events, 
without  excuse,  unless  prevented  by  the  act  of  God  or  the 
Queen's  enemies.  If,  on  the  other  hand,  he  had  been  a 
mere  gratuitous  bailee,  then  a  less  degree  of  care  and  caution 
would  have  been  required  of  him  than  is  required  from  a 
bailee  for  reward.  The  words  '  safely  and  securely,'  there- 
fore, receive  different  interpretations  with  reference  to  the 
character  in  which  the  defendant  is  charged.  I  cannot 
help  thinking,  that  this  was  expressly  decided  in  Coggs  v. 
Bernard."  1 

§  61.  According  to  the  opinion  of  Lord  Abinger  in  Brind 
v.  Dale,2  in  cases  of  the  carriage  of  goods  for  hire,  by  per- 
sons who  are  not  common  carriers,  the  onus  probandi  is  on 
the  plaintiff  to  show,  that  the  loss  has  been  by  the  negligence 
of  the  carrier  or  his  servants.  But  in  fact,  there  are  dis- 
crepancies in  respect  to  depositaries  for  hire  in  general, 
whether  the  onus  probandi  for  negligence  lies  on  the  plaintiff, 
or  of  exculpation  on  the  defendant,  in  an  action  for  the  loss.3 
In  some  cases  in  England,  it  has  appeared,  that  the  latter 
rule  is  maintained  ;  4  yet  in  cases,  other  than  in  the  one  of 
Brind  v.  Dale,  the  onus  of  proving  negligence  lies  on  the 
plaintiff.5  In  this  country  it  is  considered,  that  the  weight 

1  Coggs  v.  Bernard,  Appx. 

2  Brind  v.  Dale,  8  Carr.  &  Payne,  R.  207. 

3  See  Story  on  Bailm,  §  454. 

4  Ante,  §  48,  49,  50. 

5  It  has  been  ruled  in  England  in  case  against  a  depositary  for  hire,  that 
proof  merely  of  the  loss,  where  the  goods  were  stolen  by  his  servants,  is 


CH.  III.]  PRIVATE   CARRIERS   FOR   HIRE.  65 

of  authority  coincides  with  the  opinion,  that  the  burden  of 
proof  is  on  the  plaintiff,  although  an  inclination  of  opinion 
has  sometimes  been  expressed  the  other  way.1  With  regard 


not  sufficient  to  put  the  bailee  on  his  defence  ;  and  that  the  burden  of 
proof  of  negligence  is  on  the  bailor.  Finacune  v.  Small,  1  Esp.  R.  314. 
In  another  case,  in  an  action  against  a  pawnee  for  a  negligent  loss  of  the 
pawn,  it  is  held,  that  it  is  incumbent  on  the  plaintiff  to  support  the  allega- 
tions of  his  declaration  by  competent  proofs,  and  the  burden  of  proof,  in 
respect  to  negligence,  is  thrown  on  him.  Cooper  v.  Barton,  3  Camp.  R.  5. 
In  Harris  v.  Packwood,  3  Taunt.  R.  264,  which  was  the  case  of  a  special 
acceptance  by  a  common  carrier,  but  who  yet  was  held  liable  for  actual 
negligence,  Lawrence,  J.  charged  the  jury,  that  the  onus  of  proving  care 
lay  with  the  defendant  ;  but  the  Court  held  otherwise,  on  a  motion  for  a 
new  trial ;  and  that  express  negligence  must  be  shown  by  the  plaintiff. 
This  case  is  understood  as  going  that  length  by  Abbott,  C.  J.,  in  Marsh  v. 
Home,  5  B.  &  Cr.  322.  A  similar  case  is  reported  in  1  H.  Black.  R. 
298,  Clay  v.  Willan. 

1  Story  on  Bailm.  §  454.  That  negligence  must  be  shown  by  the  plain- 
tiff, is  maintained  in  Newton  v.  Pope,  1  Cow.  (N.  Y.)  R.  109.  In  Platt 
«.  Hibbard,  7  Cow.  (N.  Y.)  R.  497,  Walworth,  the  Ch.,  told  the  jury, 
that  in  all  cases  of  bailment  of  property  to  one  who  carries  on  the  business 
of  receiving  it  into  his  custody  for  reward,  it  is  necessary  that  a  strict 
rule  should  be  enforced  against  the  bailee  to  prevent  fraud.  Hence,  when 
property  intrusted  to  a  warehouseman,  wharfinger,  or  storing  and  for- 
warding merchant,  in  the  ordinary  course  of  business,  is  lost,  injured,  or 
destroyed,  the  weight  of  proof  is  with  the  bailee,  to  show  a  want  of  fault 
or  negligence  on  his  part;  or,  in  other  words,  to  show  the  injury  did  not 
happen  in  consequence  of  his  neglect  to  use  all  that  care  and  diligence  on 
his  part,  that  a  prudent  or  careful  man  would  exercise  in  relation  to  his 
own  property.  In  Clarke  v.  Spence,  10  Watts  (Penn.)  R.  335,  Rogers, 
in  delivering  the  opinion  of  the  Court,  said  :  —  "It  is  to  be  regretted,  that 
this  is  not  the  rule,  but  it  seems  to  be  contrary  to  the  current  of  authority, 
as  has  been  clearly  shown  by  the  cases  cited  at  the  bar.  The  rule  is, 
when  a  loss  has  been  proved,  or  when  goods  are  injured,  the  law  will  not 
intend  negligence.  The  bailee  is  presumed  to  have  acted  according  to  his 
trust,  until  the  contrary  is  shown.  But  to  throw  the  proofs  of  negligence 
on  the  bailors,  it  is  necessary  to  show,  by  clear  and  satisfactory  proof, 
that  the  goods  were  lost,  and  the  manner  they  were  lost.  All  the  bailor 
has  to  do  in  the  first  instance,  is  to  prove  the  contract  and  the  delivery  of 
the  goods,  and  this  throws  the  burden  of  proof,  that  they  were  lost,  and 
the  manner  they  were  lost,  on  the  bailee,  of  which  we  have  a  right  to 
6* 


66  LAW   OF    CARRIERS.  [CH.  III. 

to  the  breaking  down  and  overturning  of  a  stage-coach,  it 
seems  that  either  of  those  events  is  primd  facie  evidence  of 
negligence  on  the  part  of  the  proprietor  and  his  servants.1 

§  62.  By  the  Civil  Law,  as  has  already  been  shown,2  the 
settled  doctrine  is,  that  in  all  cases  of  theft,  the  burden  of 
proof  is  thrown  upon  the  bailee  to  repel  the  presumption  of 
negligence.  And  by  the  French  Law,  where  a  loss  or  injury 
happens  to  a  thing  deposited  for  hire,  the  burden  of  proof  is 
in  like  manner  thrown  upon  the  hirer,  to  repel  the  presump- 
tion.3 By  the  Scottish  Law.  if  any  specific  injury  has 
occurred  not  manifestly  accidental,  the  onus  probandi  lies  on 
the  bailee  to  justify  himself  by  proving  the  accident.4 


require  very  plain  proofs."  See  also,  to  the  same  effect,  Beekman  v. 
Shouse,  5  Rawle  (Perm.)  R.  179.  In  Schmidt  v.  Blood,  9  Wend.  (N.  Y.) 
R.  268,  the  Court  held,  that  a  warehouseman,  not  chargeable  with  negli- 
gence, is  not  responsible  for  goods  intrusted  to  him  if  stolen  or  embezzled 
by  his  storekeeper  or  servant,  and  the  onus  of  showing  negligence  lies  on 
the  owner.  The  Supreme  Court  of  Tennessee  hold,  that,  "  in  a  bailment 
for  hire  the  onus  probandi  of  negligence  is  upon  the  bailor ;  and  that,  after 
the  bailor  has  proved  the  contract  and  delivery  of  the  goods,  the  burden 
of  proof  is  upon  the  bailee  to  show  their  loss,  and  the  manner  they  were 
lost,  and  this  throws  the  proof  of  negligence  upon  the  bailor."  Rungan 
».  Caldwell,  7  Humph.  (Tenn.)  R.  134.  The  above  case  of  Platt  v. 
Hibbard,  7  Cowen,  R.  497,  was  commented  on  and  disapproved  by  the 
Court  in  Foote  v.  Storrs,  2  Barb.  (N.  Y.)  R.  326,  in  which  it  was  held, 
that  in  all  cases  where  a  defendant  is  bound  only  to  ordinary  care,  and  is 
liable  only  for  ordinary  neglect,  the  plaintiff  cannot  reason  upon  the  mere 
proof  of  the  loss  of  the  articles  entrusted  to  the  bailee  ;  and  that  the  onus 
is  on  the  plaintiff  to  give  some  evidence  of  a  want  of  care  in  the  bailee  or 
his  servant.  As  to  the  onus  probandi,  in  cases  of  carriers  without  hire,  see 
ante,  §  38. 

1  Christie  v.  Griggs,  2  Campb.  R.  79  ;  Stokes  t>.  Saltonstall,  13  Peters, 
•(U.  S.)  R.  181. 

2  Ante,  §  48. 

3  Poth.  Contrat  de  Louage,  n.  194,  199,  200 ;  Code  Civil  of  France, 
art.  1732  et  seq.,  cited  in  Story  on  Bailni.  §  454  ;  and  as  to  Civil  Law 
authorities,  see  Story  on  Bailm.  §  278,  339,  411. 

4  1  Bell,  Comm.  454,  (5th  edit.) 


CH.  in.]        PRIVATE  CARRIERS  FOR  HIRE.  67 

§  63.  The  Common  Law  does  not  probably  differ  from 
the  Civil  Law  as  to  the  onus  probandi,  after  a  due  demand 
of  the  property  and  refusal.  The  demand  and  refusal  would 
be  evidence,  as  has  been  seen,  of  a  tortious  conversion,  so 
that  it  would  then  be  incumbent  on  the  bailee  to  give  evi- 
dence of  a  loss  by  casualty  or  superior  force,  and  independ- 
ent of  his  own  statement.1  It  has  been  said,  in  respect  to 
depositaries  not  for  hire,  that  the  distinction  would  seem  to 
be,  that  when  there  is  a  total  default  to  deliver  the  goods 
bailed,  on  demand,  the  onus  for  accounting  for  the  default 
lies  with  the  bailee  ;  otherwise  he  shall  be  deemed  to  have 
converted  the  goods  to  his  own  use,  and  trover  will  lie.2  It 
may,  therefore,  be  different  where  a  prima  facie  case  of  trover 
is  made  out,  from  what  it  would  be,  in  an  action  of  assumpsit, 
or  an  action  on  the  case  founded  on  negligence.3  In  many 
complicated  cases  of  evidence,  the  burden  of  proof  may 
alternately  shift  from  one  party  to  the  other,  in  different 
stages  of  the  trial.4 

§  64.  In  an  action  against  a  bailee  for  negligence,  it  ap- 
pears, that  his  conduct  and  his  statements  contemporaneous 
with  the  loss,  are  admissible  evidence  in  his  favor,  to  estab- 


1  Ante,  §  38  ;  Story  on  Bailm.  §  339.     A  demand  and  refusal  is  ordi- 
narily evidence  of  a  conversion  ;  unless  the  circumstances  constitute  a  just 
excuse.     Phillpott  v.  Kelley,  3  Adol.  &  Ell.  R.  106  ;  Cranch  v.  White, 
1  Bing.  N.  Cas.  414. 

2  See  note  to  the  case  of  Platt  v.  Hibbard,  7  Cow.  (N.  Y.)  R.   500. 
Proof  of  the  loss  of  goods  by  a  carrier  will  not  be  sufficient  to  maintain  a 
count  in  trover.     But  a  demand  and  non-delivery  are  evidence  of  a  con- 
version, and  are  sufficient,  unless  the  carrier  can  give  some  legal  excuse. 
Ross  v.  Johnson,  5  Burr.  R.  2825  ;  2  Salk.  R.  655.     A  judgment  in  an 
action  of  assumpsit,  against  a  bailee,  for  a  breach  of  his  contract  to  trans- 
port and  deliver  the  propetry  bailed,  in  which  the  owner  has  recovered 
damages  for  the  value  of  the  property,  without  satisfaction,  is  no  bar  to  an 
action  of  trover  against  a  third  person,  who  has  purchased  the  property  of 
the  bailee.     Hyde  v.  Noble,  13  N.  Hamp.  R.  494. 

3  Ante,  §  38. 

4  Story  on  Bailm.  §  278. 


68  LAW   OF   CARRIERS.  [CH.  III. 

lish  the  nature  of  the  loss,  or  how  it  occurred  ;  but  the  jury 
are  to  decide  in  reference  to  all  the  circumstances,  and  are 
at  liberty  either  to  believe  or  disbelieve  the  bailee's  statement, 
or  own  account.1 

§  65.  In  a  suit  against  a  carrier  for  goods  lost,  the  promise 
of  the  carrier,  after  the  commencement  of  the  suit,  to  pay 
for  the  goods,  if  the  plaintiff  would  swear  to  a  list  of  them, 
was  held  an  admission  of  the  carrier's  liability  ;  and  an 
affidavit  of  the  plaintiff,  made  in  pursuance  of  such  promise, 
is  admissible  in  evidence  to  the  amount  of  his  demand.2 

§  66.  Upon  general  principles  it  would  seem,  that  ware- 
housemen, wharfingers,  and  private  carriers  for  hire,  ought 
to  have  a  specific  lien  on  the  thing  for  their  labor  and  services, 
like  artisans ;  but  it  is  a  matter  upon  which,  it  is  said,  the 
authorities  present  no  rules  for  a  guide.3  Warehousemen 
and  wharfingers  have  sometimes  in  England  a  lien  by  cus- 
tom ; 4  and  it  has  been  held  in  Pennsylvania,  that  warehouse- 

1  Doorman  v.  Jenkins,  2  Adol.  &  Ell.  R.  256  ;  Tompkins  v.  Saltmarsh, 
14  S.  &  Rawle  (Penn.)  R.  275;  and  see  ante  §  40. 

2  Kurd  v.  Pendrigh,  2  Hill  (N.  Y.)  R.  502 ;  and  see  Brooks  v.  Ball,  18 
Johns.  (N.  Y.)  R.  337. 

3  Story  on  Bailtn.  §  453  a,  (edit,  of  1846.)     In  respect  to  a  specific  lien, 
it  has  been  laid  down  as  a  general  rule,  that  where  a  bailee  spends  labor 
and  skill  in  the  improvement  of  the  chattel  bailed,  he  has  a  lien  on  it. 
Bevan  v.  Waters,  1  Mood.  &  Malk.  R.  235.     But  it  has  been  added,  that 
his  lien  is  confined  to  cases  where  additional  value  has  been  conferred  by 
him  on  the  chattel,  either  directly,  by  the  exercise  of  personal  labor  or 
skill,  or  indirectly,  by  the  intervention  of  any  instrument  over  which  he 
has  control.     Scarfe  v.  Morgan,  4  M.  &  Welsh.  R.  270  ;    Jackson  ». 
Cummings,  5  Ib.  342.     Upon  this  latter  ground,  it  has  been  held  in  Eng- 
land, that  an  agister  of  cattle  has  no  lien  on  the  cattle  for  the  pasturage 
consumed.     This  doctrine  (Story  on  Bailm.  ub.  sup.)  has  as  yet  not  been 
recognized  in  this  country  ;  and  certainly  it  is  not  without  its  difficulties. 
In  its  application  to  livery  stable  keepers,  it  may  be  admitted,  because 
there  would  seem  to  be  an  implied  contract  to  deliver  the  animal  at  the 
mere  pleasure  of  the  owner. 

4  Rex  v.  Humphrey,  1  M'Clel.  &  Young,  R.  194 ;  Lockhart  v.  Cooper, 


CH.  III.]  PRIVATE   CARRIERS   FOR  HIRE.  69 

men  have  a  specific  lien,  although  it  cannot  be  said,  that  by 
care  and  skill,  they  have,  like  artisans,  improved  the  thing 
bailed.1  Chief  Justice  Gibson,  who  delivered  the  opinion  of 
the  Court  in  this  case,  held,  that,  on  the  ground  of  principle, 
it  was  not  easy  to  discover  why  the  warehouseman  should  not 
have  the  same  lien  for  the  price  of  future  delivery  as  that  of 
a  carrier  (common  carrier)  has.  The  one  delivers  at  a  differ- 
ent time,  the  other  at  a  different  place  ;  the  one  after  custody 
in  a  warehouse,  the  other  in  a  vehicle ;  and  that  was  all 
the  difference.  It  was  true,  that  the  measure  of  a  common 
carrier's  responsibility  was  greater  ;  but  that,  though  a  con- 
sideration to  influence  the  quantum  of  his  compensation, 
was  not  a  consideration  to  increase  the  number  of  his  secu- 
rities for  it.  The  learned  Judge,  in  short,  understood  the 
law  to  be,  that  a  warehouseman  (and  a  private  carrier  stands 
on  the  same  footing)  stands  on  a  footing  with  a  common 
carrier,  whom  in  this  country  he  closely  resembles.  Now, 
common  carriers,  in  virtue  of  the  obligation  they  are  under, 
by  the  "  custom  of  the  realm "  to  carry  for  a  reasonable 


1  Scott,  R.  481.  Where  no  lien  exists  at<Common  Law,  it  can  only  arise 
by  contract  with  the  particular  party,  either  express  or  implied  ;  it  may  be 
implied  either  from  previous  dealings  between  the  same  parties  upon  the 
footing  of  such  a  lien,  or  from  a  well  and  long  established  usage  of  trade  so 
general,  as  that  the  jury  must  reasonably  presume,  that  the  parties  knew 
of,  and  adopted  it,  in  their  dealing.  Rushforlh  v.  Hadfield,  7  East,  R. 
224.  There  is  a  well  known  distinction  between  a  commercial  lien,  which 
is  the  creature  of  usage,  and  a  Common  Law  lien,  which  is  the  creature 
of  policy.  The  first  gives  a  right  to  retain  for  a  balance  of  accounts  ;  the 
second,  for  services  performed  in  relation  to  the  particular  property. 
Commercial  or  general  liens,  which  have  not  been  fastened  upon  the  law 
merchant  by  inveterate  usage,  are  discountenanced  by  the  Courts  as  en- 
croachments on  the  Common  Law.  Per  Gibson,  C.  J.,  in  delivering  the 
opinion  of  the  Court  in  Steinman  «.  Wilkins,  7  Waits  &  S.  (Penn.)  R. 
466.  And  see,  as  to  the  general  principles  of  the  law  of  lien,  Chase  v. 
Wetmore,  5  M.  &  Sel.  R.  180  ;  Jacobs  v.  Latour,  5  Bing.  R.  132 ; 
Kirkham  v.  Shawcross,  6  T.  R.  17  ;  Bevan  v.  Waters,  Mood.  &  Malk. 
R.  235;  Jackson  v.  Cummings,  5  M.  &  Welsb.  R.  342. 
1  Steinman  v.  Wilkins,  7  Watts  &  S.  (Penn.)  R.  466. 


70  LAW   OF   CARRIERS.  [CH.  HI. 

reward,  have  a  lien  for  the  carriage  price  of  the  particular 
goods ;  for,  as  the  law  imposes  that  burden,  it  gives  them  the 
power  of  retaining  for  their  indemnity.1  But  it  is  held,  in 
Pennsylvania,  that  the  Common  Law  rule,  that  common 
carriers  are  obliged  to  receive  goods  for  carriage,  at  the  cur- 
rent price,  cannot  properly  be  applied.2 


1  As  will  be  shown  in  a  subsequent  chapter. 

2  Gordon  v.  Hutchinson,  1  Watts  &  S.  (Penn.)  R.  285;  and  Steinman 
v.  Wilkins,  ub.  sup.     For  a  more  full  consideration  of  the  doctrine  of  lien 
as  applied  to  carriers,  see  post  § 


CH.  IV.]  WHO   ARE   COMMON  CARRIERS.  71 


CHAPTER  IV. 

WHO   ARE   COMMON   CARRIERS. 

§  67.  COMMON  carriers  are  the  second  description  of  per- 
sons who  have  been  mentioned  1  as  carrying  for  hire,  and 
whose  contract,  in  that  capacity,  belongs  to  the  class  of  bail- 
ments denominated  Locatio  opens,  and  is  styled  Locatio 
operis  mercium  vehendantm.2  The  trust  created  by  this  con- 
tract, being  both  for  the  benefit  of  the  bailor  and  the  bailee, 
the  latter,  if  only  a  private  carrier,  is  bound  only  to  ordinary 
diligence,  as  appears  by  the  preceding  chapter.  But  a  com- 
mon carrier  differs  from  a  private  carrier  in  two  important 
respects  ;  1.  In  respect  of  duty,  he  being  obliged,  by  law,  to 
undertake  the  charge  of  transportation,  which  no  other 
person,  without  a  special  agreement,  is.  It  is  not  even  ne- 
cessary to  charge  him  as  carrier,  that  a  specific  sum  should 
be  agreed  upon  for  carriage,  although  he  is  entitled  to  rea- 
sonable compensation.  2.  In  resp'ect  of  risk.  A  common 
carrier  is  regarded  by  the  law  as  an  insurer  of  the  property 
intrusted  to  him  ;  or,  in  other  words,  he  is  legally  responsible 
for  acts  against  which  he  could  not  provide,  from  whatever 
cause  arising,  the  acts  of  God  and  the  public  enemy  only 
excepted.  The  loss  of,  or  damage  done  to,  property  in  his 
possession  to  be  carried,  is  of  itself  sufficient  proof  of  negli- 
gence, the  maxim  being,  that  every  thing  is  negligence  which 
the  law  does  not  excuse ;  so  that  in  all  cases,  but  those  just 
mentioned  as  excepted,  his  faultlessness  is  no  discharge.3 
This  peculiar  duty  and  this  extraordinary  responsibility,  im- 
posed by  the  force  of  the  general  law,  upon  a  common 


1  Ante,  §  l. 

2  See  the  different  divisions  and  subdivisions  of  bailments,  ante,  §  13,  14, 
15.  3  See  Coggs  v.  Bernard,  Appx. 


72  LAW   OF   CARRIERS.  [CH.  IV. 

carrier,  are  to  be  extensively  considered  in  subsequent  chap- 
ters ;  but  it  is  important  to  inquire  beforehand  when  persons 
become  common  carriers,  inasmuch  as  it  would  be  unjust  to 
impose  upon  an  individual  the  duty  and  the  responsibility 
just  mentioned,  until  he  has  so  conducted  himself,  and  so 
held  himself  out,  as  to  have  fairly  assumed  them.1  There- 
fore, it  is  proposed,  in  the  present  chapter,  to  consider,  first, 
who  are  common  carriers,  and  secondly,  whether  the  duties 
and  obligations  which  persons  have  incurred  by  voluntarily 
becoming  such,  extend  alike  to  every  description  of  thing. 

§  68.  FIRST  ;  The  general  law  of  bailments,  as  has  before 
been  mentioned,2  was  so  unsettled  from  Ihe  reign  of  Eliza- 
beth to  the  reign  of  Anne,  as  to  have  been  in  that  interval 
the  subject  of  surprising  diversity  of  opinion  and  inconsist- 
ency of  argument.  But  the  rule  of  the  above-mentioned 
extraordinary  responsibility  of  a  common  carrier  seems  to 
have  been  first  established  in  the  commercial  reign  of  the 
former,  upon  the  principles  of  policy  and  convenience,  or  to 
favor  and  encourage  commerce  by  guarding  against  the 
carrier's  collusion  and  combination  with  thieves  and  robbers.3 
Lord  Chief  Justice  Holt,  in  the  case  of  Coggs  v.  Bernard,4 
which  was  decided  in  the  second  year  of  the  reign  of  Anne, 
in  enumerating  and  expounding  the  different  sorts  of  bail- 
ments, mentions  the  one  of  the  carriage  of  goods  for  hire  as 
"  a  delivery  to  carry  for  a  reward  to  be  paid  to  the  bailee," 
which,  he  says,  "  is  either  a  delivery  to  one  that  exercises  a 
public  employment,  or  a  delivery  to  a  private  person."  There- 
fore, according  to  Lord  Holt,  to  bring  a  person  within  the 
description  of  a  common  carrier,  he  must  exercise  the  busi- 
ness of  carrying  as  a  "  public  employment,"  or,  as  it  has 
been  said,  "  he  must  undertake  to  carry  goods  for  persons 


1  As  is  said  by  the  Court  in  Boyce  ».  Anderson,  2  Peters  (U.  S.)  R.  150. 

2  Ante,  §  3. 

3  Jones  on  Bailm.  103  ;  Story  on  Bailm.  §  489,  490. 

4  Coggs  v.  Bernard,  Appx. 


CH.  IV.]  COMMON   CARRIERS.  73 

generally ;  and  he  must  hold  himself  out  as  ready  to  engage 
in  the  transportation  of  goods  for  hire,  as  a  business,  and  not 
as  a  casual  occupation  pro  hac  vice"  l 

§  69.  It  was  determined  in  the  eighth  year  of  the  reign  of 
Anne,  that  any  person  undertaking,  for  hire,  to  carry  the 
goods  of  all  persons  indifferently,  is,  as  to  the  liability  im- 
posed, to  be  considered  a  common  carrier.  The  case  was 
trover  for  goods  which  had  been  put,  with  the  carrier's 
wagon,  into  a  barn,  and  taken  as  a  distress.  The  person  to 
whom  the  goods  had  been  intrusted  carried  cheese  to  London, 
and  usually  loaded  back  with  goods  for  a  reasonable  price  for 
all  persons  indifferently  ;  and  the  Court  held,  that  "  such  an 
undertaking  to  carry  for  hire,  as  this  privilege,  was  to  be 
considered  that  of  a  common  carrier,  and  the  goods  so  deliv- 
ered for  that  lime  under  legal  protection,  and  privileged  from 
distress  ;  and  so  wherever  they  are  delivered  to  a  person 
exercising  any  public  trade  or  employment."2  So  of  inn 


1  Story  on  Bailm.  $  495 ;  Citizens'  Bank  v.  Nantucket  Steamboat  Com- 
pany, 2  Story  (Cir.  Co.)  R.  32.     In  North  Carolina,  to  render  a  person 
liable  as  common  carrier,  he  must  make  the  carriage  of  goods  his  constant 
employment,  and  one  employed  pro  hac  vice,  though  for  hire,  is  not  liable 
as  a  common  carrier.     Anonymous  v.  Jackson,  1  Hayw.  (N.  C.)  R.  14. 

2  Gisbourne  v.  Hurst,  1  Salk.  R.  249.      Evidence  that  the  defendant 
kept  a  booking  office  for  a  considerable  number  of  coaches  and  wagons,  is 
not  of  itself  sufficient  to  prove  him  a  common  carrier.     Thus  where,  it 
was  proved,  that  at  the  door  of  a  booking  office  there  was  a  board  on 
which  was  painted  "conveyances  to  all  parts  of  the  world,"  and  list  of 
names  of  places ;  was  held  not  sufficient  proof  that  the  owner  of  the  office 
was  a  common  carrier,  so  as  to  charge  him  for  the  loss  of  a  box  which 
was  booked  there.     Upston  v.  Slark,  2  C.  &  Payne,  R.  598 ;  Gilbert  v. 
Dale,  1  Nev.  &  Per.  R.  22.     A  promise   by  a  book-keeper  to  make  com- 
pensation for  the  loss  of  a  parcel,  is  not  binding  upon  the  master,  unless 
he  be  proved  to  be  a  general  agent  of  the  master  for  such  purposes.    Olive 
v.  Eames,  2  Stark.  R.  181.     As  will  be  more  fully  illustrated,  (post,  § 
75,)  the  difference  between  a  common  carrier  and  a  warehouseman,  in 
respect  to  liability,  is  the  same  as  between  a  common  carrier  and  a  private 
carrier.     Sometimes  a  person  is  both  a  common  carrier  and  warehouse- 
man, and  when  the  goods  are  safely  deposited  in  his  warehouse,  his  liability 

7 


74  LAW   OF   CARRIERS.  [CH.  IT. 

keepers.  A  person  who  only  occasionally  entertains  travellers 
for  pay,  is  not  an  inn  keeper  within  the  meaning  of  the  law, 
and  if  property  is  intrusted  to  his  care,  by  his  guests,  and  it 
is  lost,  he  is  not  responsible  as  a  common  inn  keeper.  Most 
of  the  farmers  in  the  new  States  and  Territories  in  the  West 
occasionally  entertain  travellers,  without  supposing  them- 
selves liable  as  common  inn  keepers  for  the  horses  or  other 
property  of  their  guests,  which  may  be  stolen,  without  any 
fault  of  their  own.  And  it  is  held,  in  those  parts  of  the  Uni- 
ted States,  that  to  be  subject  to  the  same  responsibility  attach- 
ing to  inn  keepers,  a  person  must  make  tavern  keeping,  to 
some  extent,  a  regular  business  and  so  hold  himself  out  to  the 
world.1 

§  70.  In  Dwight  v.  Brewster,  in  Massachusetts,2  Parker,  C. 
J.,  in  delivering  the  opinion  of  the  Court,  defined  a  common 
carrier  to  be  "  one  who  undertakes,  for  hire,  to  transport  the 
goods  of  such  as  choose  to  employ  him,  from  place  to  place," 
and  this,  he  added,  "might  be  carried  on  at  the  same  time 
with  other  business."  But  in  this  country  there  is  a  discrep- 
ancy in  the  authorities,  as  to  the  undertaking  necessary  to 
impose  upon  persons  the  responsibility  of  common  carriers- 
Indeed,  in  this  country  it  is  considered  reasonable,  and  to  be 
well  settled,  that  a  person  who  undertakes,  though  it  be  only 

as  common  carrier  ceases,  and  he  is  only  liable  for  ordinary  negligence,  as 
a  private  bailee  for  hire.  In  a  late  case,  it  appeared  that  four  rolls  of  leather, 
the  property  of  the  plaintiff,  were  delivered  to  the  defendants,  (Boston  and 
Providence  Railroad  Corporation,)  at  Providence,  to  be  transported  to 
Boston,  one  of  which  rolls  of  leather,  on  their  being  inquired  for  by  the 
teamster  of  the  plaintiff  at  the  depot  in  Boston,  was  missing.  It  was  the 
usage  and  practice  of  the  defendants,  to  deposit  the  goods  they  trans- 
ported, until  the  owner  should  have  a  reasonable  time  to  remove  them, 
and  therefore  the  Court  held,  that  the  defendants  were  not  liable  as  com- 
mon carriers,  for  the  loss  of  the  roll  of  leather  from  the  warehouse ;  but 
liable  only  as  depositaries,  or  for  want  of  ordinary  care.  Thomas  ».  Bos- 
ton and  Providence  Railroad  Corp.  10  Met.  (Mass.)  R.  472. 

1  Lyon  v.  Smith,  (in  Error,)  1  Morris,  (Iowa)  R.  184. 

2  Dwight  v.  Brewster,  1  Pick.  (Mass.)  R.  50. 


CH.  IV.]  COMMON  CARRIERS.  75 

pro  liac  vice,  to  act  as  a  common  carrier,  that  is,  to  carry  for 
hire  without  a  special  contract,  thereby  incurs  the  responsibil- 
ity of  a  common  carrier.1  Both  in  Pennsylvania,2  and  in 
Indiana,3  it  has  been  held,  that  a  wagoner,  who,  upon  his 
request,  carries  goods  for  hire,  is  a  common  carrier,  whether 
the  transportation  be  his  principal  and  direct  business,  or  an 
occasional  and  incidental  employment ;  and  the  principal 
business  of  the  carrier  in  both  of  the  cases  referred  to,  was 
that  of  a  farmer.  In  the  case  in  Pennsylvania,  C.  J.  Gibson, 
in  giving  the  opinion  of  the  Court,  said:  —  "  The  defendant 
is  a  farmer,  but  has  occasionally  done  jobs  as  a  carrier. 
That,  however,  is  immaterial.  He  applied  for  the  transpor- 
tation of  these  goods  as  a  matter  of  business,  and  conse- 
quently on  the  usual  conditions.  His  agency  was  not 
sought  in  consequence  of  a  special  confidence  reposed  in 
kirn.  There  was  nothing  special  in  the  case  ;  on  the  con- 
trary, the  employment  was  sought  by  himself,  and  there  is 
nothing  to  show  that  it  was  given  on  terms  of  diminished 
responsibility.  There  was  evidence  of  negligence  before  the 
jury  ;  but  independent  of  that,  we  are  of  opinion  that  he  is 
liable  as  an  insurer."  The  above  case  of  Gisbourne  v.  Hurst 
is  thus  commented  on  by  the  learned  Judge :  —  "  The  best 
definition  of  a  common  carrier,  in  its  application  to  the  busi- 
ness of  this  country,  is  that  given  by  Jeremy,4  which  he  has 
taken  from  Gisbourne  v.  Hurst,  which  was  the  case  of  one 
who  was  thought  to  be  a  common  carrier  only  because  he 
had  for  some  small  time  before  brought  cheese  to  London, 
and  took  such  goods  as  he  could  carry  back  into  the  country 
at  a  reasonable  price.  Mr.  J.  Story  has  cited  this  case,  to 
prove,  that  a  common  carrier  is  one  who  holds  himself  out 


1  See  Mr.  Wallace's  learned  note  to  the  case  of  Coggs  v.  Bernard, 
1  Smith,  Lead.  Gas.  (Am.  ed.  1847,)  p.  230  ;  Moses  v.  Norris,  4  New 
Hamp.  R.  304. 

2  Gordon  v.  Hutchinson,  1  Watts  &  S.  (Penn.)  R.  285. 

3  Powers  v.  Davenport,  7  Black.  (Ind.)  R.  497. 

4  Jeremy  on  Carr.  4. 


76  LAW     OF  CARRIERS.  [CII.   IV. 

as  ready  to  cngnge  in  the  transportation  of  goods  for  hire  as 
a  business,  and  not  as  a  casual  occupation  pro  hac  vice.1 
The  conclusion  of  C.  J.  Gibson  was  very  different.  He  took 
it,  that  a  wagoner,  who  carries  goods  for  hire  is  a  common 
carrier,  whether  transportation  be  his  principal  and  direct 
business,  or  an  occasional  and  incidental  employment.  It 
was  true,  that  the  Court  (in  Gisbourne  v.  Hurst)  went  no 
further  than  to  say,  that  a  wagoner,  was  a  common  carrier, 
as  to  the  privilege  of  exemption  from  distress  ;  but  his  con- 
tract was  held  not  to  be  a  private  undertaking,  as  the  Court 
was  at  first  inclined  to  consider  it,  but  a  public  engagement, 
by  reason  of  his  readiness  to  carry  for  any  one  who  would 
employ  him,  without  regard  to  his  other  avocations,  and  he 
would  consequently  not  only  be  entitled  to  the  privileges, 
but  be  subject  to  the  responsibilities  of  a  common  carrier ; 
indeed  they  are  correlative,  and  there  is  no  reason  why  he 
should  not  enjoy  the  one,  without  being  burdened  with  the 
other."  In  Pennsylvania,  said  C.  J.  Gibson,  the  wagoner 
was  not  always  such  by  profession.  No  inconsiderable  part 
of  the  transportation  was  done  by  the  farmers  in  the  inte- 
rior, who  took  their  produce  to  Philadelphia,  and  procured 
return  loads  for  the  retail  merchants  of  the  neighboring 
towns  ;  and  many  of  them  passed  by  their  homes,  with  loads 
to  Pittsburg  or  Wheeling,  the  principal  towns  of  embarkation 
on  the  Ohio.  But  no  one  supposed  they  were  not  respon- 
sible as  common  carriers.2 

§  71.  The  rule  approved  and  laid  down  in  Tennessee,  is, 
that  one  who  undertakes  for  reward  to  convey  produce  from 
one  place  upon  the  river  to  another,  becomes  thereby  liable 
as  a  common  carrier.3  The  same  seems  to  be  the  doctrine 
in  South  Carolina.4  Where  a  person,  in  that  Stale,  em- 

1  Story  on  Bailm.  §  495  ;  and  see  the  case  stated,  ante,  $  69. 

2  Gordon  v.  Hutchinson,  ub.  sup. 

3  Turney  ».  Wilson,  7  Yerg.  (Tenn.)  R.  340  ;  Craig  v.  Childress,  Peck, 
(Tenn.)  R.  270. 

4  M'Clure  v.  Hammond,  1  Bay  (S.  C.)  R,  99. 


CH.  IV.]  COMMON   CARRIERS.  77 

ployed  a  boat  to  take  his  own  cotton,  and  occasionally  car- 
ried that  of  his  neighbors,  it  was  held,  that  he  was  bound 
as  a  common  carrier  by  the  consent  of  his  captain  to  taek 
freight,  though  application  for  that  purpose  was  usually 
made  to  himself.  But,  if  the  defendant  had  previously 
employed  his  boat  for  his  own  purposes  exclusively,  it  could 
not  be  fairly  inferred,  that  the  agent  could  do  what  his  em- 
ployer never  had  done ;  but  his  employer  had  in  some 
measure  used  the  boat  for  the  community  in  which  he  lived, 
and  from  his  course  of  dealing  with  it,  had  held  himself 
out  as  a  common  carrier.1  In  a  very  late  case  in  Georgia,2 
there  is  an  elaborate  opinion  of  the  Supreme  Court  of  Geor- 
gia, in  which  the  Court  directly  declare,  that  the  rule  as  laid 
down  in  Gordon  v.  Hutchinson,  in  Pennsylvania,  is  opposed 
to  the  principles  of  the  Common  Law,  and  that  it  is  wholly 
inexpedient.  The  decision  in  this  case  was,  that  a  person 
who  received  and  contracted  to  deliver  certain  packages  of 
goods  in  good  order  and  condition,  unavoidable  accidents 
only  excepted,  was  not  a  common  carrier,  because  it  did  not 
appear,  that  carrying  was  his  habitual  business.2 

§  72.  But,  although  a  person  may  incur  the  liability  of  a 
common  carrier,  by  receiving  goods  on  his  own  application 
to  carry  them  for  hire  from  one  place  to  another,  as  an 
occasional  business,  yet  if  a  person  is  induced  so  to  under- 
take by  the  particular  request  of  his  employer,  he  incurs  only 
the  liability  of  a  private  carrier  ;  and  this,  even  when  the 
person  has  once  been  a  public  carrier,  and  since  abandoned 
the  occupation.  In  Satterlee  v.  Grant,3  the  defendant  had 
been  a  public  common  carrier  between  Schenectady  and 
Albany,  previous  to  1819,  and  in  that  year  sold  out  all  his 
teams  but  one,  which  he  kept  for  agricultural  purposes  on 
his  farm.  Although  it  appeared  in  evidence,  that  he  em- 
ployed his  team  in  the  carrying  and  forwarding  business, 


1  M'Clure  v.  Richardson,  1  Rice  (S.  C.)  R.  215. 
a  Fish,  &c.  v.  Ross,  2  KeH.  (Geo.)  R.  349. 
3  Satterlee  v.  Grant,  1  Wend.  (N.  Y.)  R.  272. 

7* 


78  LAW   OF   CARRIERS.  [CH.  IV. 

until  1822  or  1823,  yet  it  did  not  so  appear,  that  subse- 
quently, he  carried  and  forwarded  a  single  load,  until  April, 
1824,  when,  upon  an  urgent  application  of  one  J.  D.,  he 
dispatched  a  driver  with  his  team,  to  bring  some  loads  from 
Albany  to  Schenectady,  with  instructions  to  the  driver,  to 
bring  nothing  for  any  other  person  ;  and  if  the  goods  of  J. 
D.  were  not  ready,  to  come  back  empty.  He  brought  two 
loads,  and  returned  for  a  third,  under  the  same  instructions  ; 
but  the  third  not  being  ready,  instead  of  returning  empty,  he 
applied  to  the  plaintiff  for  a  load,  which  was  delivered  to 
him  to  be  carried  to  Frankfort,  in  Herkimer  county.  Arriv- 
ing at  Schenectady  late  at  night,  it  was  discovered  the  next 
morning,  that  one  of  the  boxes  had  been  broken  open,  and  a 
part  of  the  goods  stolen.  The  defendant  had  disavowed  all 
responsibility,  before  it  was  discovered,  that  any  of  the  goods 
had  been  taken,  and  had  declared,  that  the  driver  had  violated 
his  express  instructions  in  receiving  them  for  carriage.  The 
driver  was  subsequently  convicted  of  stealing  them  and  sent 
to  the  State  prison  therefor.  The  defendant  gave  immediate 
notice  to  the  plaintiff  of  all  the  facts,  and  disavowed  his 
responsibility  for  the  loss.  The  Court  held,  that  the  defend- 
ant stood  upon  the  same  footing,  as  though  he  had  never 
been  engaged  in  the  forwarding  business,  and  that  he  was 
not  responsible  for  the  act  of  his  servant  done  in  the  violation 
of  his  instructions,  and  not  in  the  ordinary  course  of  the 
business  in  which  he  was  employed.  The  Court  put  the  case 
of  a  farmer's  sending  a  servant  with  a  load  of  wheat  to  mar- 
ket, and  he,  without  any  instructions  from  his  master,  applies 
to  a  merchant  for  a  return  load,  and  absconds  with  it,  and 
then  asks,  if  the  master  could  be  responsible  ?  Most  clearly, 
they  say,  he  would  not  be  ;  for  the  reason,  that  it  was  beyond 
the  scope  of  the  general  authority  of  the  servant,  quoad  hoc. 
He  acted  for  himself  and  on  his  own  responsibility,  and  not 
for  his  employer. 

§  73.  The  case  of  Jenkins  v.  Pickett,  in  Tennessee,1  was 
i  Jenkins  v.  Pickett,  9  Yerg,  (Term.)  R.  480. 


CH.  IV.]  COMMON   CARRIERS.  79 

not  unlike  the  above.  In  this  case  a  common  carrier  sent 
his  wagon  to  N.  with  a  load  of  cotton,  the  driver  of  which 
was  a  young  negro,  who  had  never  been  allowed  to  make 
contracts  for  hauling,  and  who  had  never  been  trusted  before 
alone,  with  the  wagon  and  team,  and  who  at  this  time  was 
particularly  instructed  to  bring  home  a  load  of  salt,  and  not 
to  receive  goods  for  carriage  ;  notwithstanding  which,  he  did 
receive  goods  for  carriage,  and  the  goods  were  damaged  ;  it 
was  held,  that  the  carrier  was  not  liable. 

§  74.  There  is  not  an  entire  coincidence  in  opinion,  it  has 
been  said,1  as  to  whether  carmen,  truckmen,  and  other  port- 
ers, who  undertake  to  carry  goods  for  hire  from  one  part  of 
a  toivn  or  city  to  another,  as  a  common  employment,  are 
common  carriers.  It  seems  to  have  been  held  in  England, 
at  Nisi  Prius,  by  Lord  Abinger,  in  Brind  v.  Dale,  that  a 
town  carman,  whose  carts  ply  for  hire  near  the  wharves,  and 
who  also  lets  the  same  out  by  the  hour  or  day,  or  job,  is  not 
a  common  carrier.2  Story,  in  referring  to  this  case,  seems  to 
be  at  a  loss  to  perceive  what  substantial  difference  there  is  in 
the  case  of  parties  who  ply  for  hire,  for  the  carriage  of  goods 
of  all  parties  indifferently,  whether  the  goods  are  carried  from 
one  town  to  another,  or  from  one  place  to  another  within 
the  same  town  ;  and  that  there  is  any  substantial  difference 
whether  the  parties  have  fixed  termini  of  their  business  or 
not,  if  they  hold  themselves  out,  as  ready  and  willing  to  carry 
goods  for  any  persons  whatsoever,  to  or  from  any  places  in 
the  same  town,  or  in  different  towns.3  Both  this  learned 
author  and  Kent  lay  it  down,  upon  the  strength  of  the  general 
authorities,  that  truckmen,  teamsters,  and  cartmen,  who  un- 
dertake to  carry  goods,  as  a  common  employment,  from  one 
part  of  a  town  or  city  to  another,  are  subject  to  the  liabilities 


1  Story  on  Bailm.  note  to  §  496,  (edit.  1846.) 

2  Brind  v.  Dale,  8  C.  &  Payne,  R.  207. 

3  Story  on  Bailm.  ub.  sup. 


80  LAW   OF   CARRIERS.  [CH.  IV. 

and  duties  of  common  carriers.1  In  Brind  v.  Dale  it  appears, 
that  the  goods  were  put  into  the  cart  under  a  modified  con- 
tract, that  the  plaintiff  should  go  with  them,  and  take  care  of 
them  ;  and  Lord  Abinger  in  summing  up,  told  the  jury,  that 
if  they  thought  that  the  goods  were  delivered  under  such 
modified  contract,  their  verdict  on  that  issue  should  be  for 
the  defendant ;  and  the  jury  so  found.  In  the  case  of  Rob- 
ertson v.  Kennedy,  in  the  Court  of  appeals  of  Kentucky,  in 
1834,2  it  was  decided  expressly,  that  the  defendant  was  liable, 
as  a  common  carrier,  for  the  loss  of  a  hogshead  of  sugar, 
which  he  had  undertaken  to  convey  from  the  bank  of  the 
river  in  the  town  to  the  store  of  the  plaintiff  in  the  same 
town,  and,  in  giving  their  opinion,  the  Court  said,  that 
"  draymen,  cartmen,  and  porters,  who  undertake  to  carry 
goods  for  hire,  as  a  common  employment,  from  one  part  of 
a  town  to  another,  come  within  the  definition  ;  so  also  does 
the  driver  of  a  slide  (sled,)  with  an  ox  team  ;  the  mode  of 
transportation  is  immaterial."  In  a  case  where  common 
carriers,  from  Gainsborough  to  Manchester,  charged  and 
received  for  the  cartage  of  goods  to  the  consignee's  house 
at  Manchester,  from  a  warehouse  there,  where  they  usually 
unloaded,  Lord  Kenyon  said  :  —  "In  this  case  there  is  one 
peculiar  circumstance,  which  makes  it  necessary  to  decide 
the  general  question,  and  that  is,  the  charge  made  by  the 
defendants  in  one  of  their  bills  for  the  cartage  at  Manchester  ; 
for  that  charge  the  defendants  were  obliged  to  deliver  the 
goods ;  "  and  the  defendants  were  held  liable  as  common 
carriers  from  the  warehouse  in  Manchester  to  the  house  of 
the  consignee  there.3 

§  75.  There  is  a  class  of  persons  well  known  in  this 
country,  who  are  called  "forwarding  'merchants"  and  who 
usually  combine  in  their  business  the  double  character  of 

1  Story  on  Bailm.  §  496  ;  2  Kent,  Comm.  598,  599. 

2  Robertson  &  Co.  v.  Kennedy,  2  Dana  (Ken.)  R.  430. 

3  Hyde  v.  Trent  and  Mersey  Nav.  Co.  5  T.  R.  389. 


CH.  IV.]  COMMON   CARRIERS.  81 

warehousemen  and  agents  for  a  compensation,  to  forward 
goods  to  their  destination.  This  class  of  persons  is  especially 
employed  upon  our  canals  and  railroads,  and  in  our  coasting 
navigation  by  steam-vessels  and  other  packets.1  The  law  is, 
that  persons  so  employed,  if  they  have  no  concern  in  the 
vehicle  by  which  the  goods  are  sent,  and  have  no  interest  in 
the  freight,  are  not  liable  as  common  carriers,  but  are  of 
course  liable,  like  warehousemen  and  common  agents,  that 
is,  for  ordinary  diligence,  and  for  that  only.2  They  are  re- 
sponsible only  for  want  of  good  faith,  and  reasonable  and 
ordinary  diligence  ;  but  one  of  their  first  duties,  as  consignees 
for  transmission,  undoubtedly,  is  to  obey  the  instructions  of 
the  consignor,  either  express,  or  fairly  implied  ;  and  when 
they  undertake  to  vary  from  the  instructions,  from  whatever 
motive,  and  a  loss  is  thereby  occasioned,  they  are  clearly 
liable  to  the  owners  of  the  goods.3  Sometimes  a  person  is 
both  a  common  carrier  and  a  forwarding  merchant,  and 
receives  goods  into  his  warehouse  to  be  forwarded  in  obedi- 
ence to  the  future  orders  of  the  owner  ;  and  if,  in  such  case, 
the  goods  are  lost  by  fire  before  such  orders  are  received,  or 
the  goods  sent  forward,  he  is  not  chargeable  as  common 
carrier,  but  only  as  warehouseman.  His  duty  as  carrier  ends 
also,  when  the  goods  have  arrived  at  the  place  of  their  fixed 
destination,  and  are  deposited  in  the  carrier's  warehouse, 
when  his  duty  as  warehouseman  again  commences.4  But  if 
the  deposit  in  the  warehouse  of  the  carrier  be  at  some  inter- 
mediate place  in  the  course  of  his  route  ;  or  if,  after  the  arri- 
val at  the  place  of  destination,  he  is  still  under  obligation  to 


1  2  Kent,  Comm.  591,  592  ;  Story  on  Bailm.  §  444. 

2Platt  v.  Hibbard,  7  Cow.  (N.  Y.)  R.  497;  Streeter  v.  Horlock,  7 
Bing.  R.  34  ;  Brown  v.  Denison,  2  Wend.  (N.  Y.)  R.  593 ;  Hyde  v. 
Trent  Nav.  Co.  5  T.  R.  389;  Story  on  Bailm.  §  444;  Ackley  v.  Kel- 
logg, 8  Cow.  (N.  Y.)  R.  223. 

3  Forsyth  v.  Walker,  9  Burr,  (Penn.)  R.  148. 

4  Story  on  Bailm.  $  449  ;  Platt  v.  Hibbard,  ub.  sup.  ;  Roskell  v.  Water- 
house,  2  Stark.  R.  461 ;  Roberts  v.  Turner,  12  Johns.  (N.  Y.)  R.  232  ; 
Webb,  in  re,  8  Taunt.  R.  343. 


82  LAW    OF   CARRIERS.  [CH.  IV. 

deliver  the  goods  to  the  owner  ;  and  before  such  delivery  he 
has  put  them  into  his  own  warehouse,  where  they  are  con- 
sumed by  fire,  he  \vill  be  liable  for  the  loss,  his  duty,  as  car- 
rier, not  being  ended.1 

§  76.  That  wagoners  and  teamsters,  who,  as  a  public  and 
common  employment,  for  hire,  transport  goods  and  merchan- 
dise from  one  town  to  another,  are  responsible  as  common 
carriers,  has  never  been  questioned.2  This  mode  of  trans- 
portation has  for  a  long  period  been  extensively  followed  in 
Pennsylvania,  and  in  that  State  it  has  ever  been  considered, 
that  the  persons  thus  engaged  in  transportation,  are  common 
carriers.3  It  is,  however,  clear,  that  if  people  be  unwary 
enough  to  send  parcels  by  the  driver  of  a  wagon  for  a  hire 
paid  to  him,  which  is  never  to  find  its  way  into  the  pocket  of 
the  owner  of  the  wagon,  the  owner  is  not  liable  in  case  the 
parcel  is  lost.4  If  money  should  be  intrusted  to  a  common 
wagoner,  not  authorized  to  receive  it,  by  the  ordinary  busi- 
ness of  his  employers  and  owners,  at  their  risk,  they  cannot 
be  considered  as  liable  for  the  loss  thereof  as  common  carri- 
ers, any  more,  it  has  been  affirmed,  than  they  would  be  for  an 
injury  done  by  his  negligence  to  a  passenger,  whom  he  had 
casually  taken  up  on  the  road.5 

§  77.  Next,  as  to  coach-masters,  or  proprietors  of  stage- 

1  Forwards.  Pittard,  1  T.  R.  27;  Hyde  v.   Trent  Navigation  Co.  5 
T.  R.  389;  and  see  Thomas  v.  Boston  and  Prov.  Railroad  Corp.  10  Met. 
(Mass.)  R.  472,  and  ante,  §  69,  n.  2. 

2  2  Kent,  Coram.  598,  599  ;  Story  on  Bailm.  §  496 ;  Gisbourne  v.  Hurst, 
ante,  $  70 ;  Hyde  v.  Trent  and  Mersey  Nav.  Co.   ub.  sup.  ;  Campbell  v. 
Morse,  Harp.   (S.  C.)    R.  468;   McHenry  v.  Railroad  Co.  4  Harring. 
(Del.)  R.  448  ;  Powers  v.  Davenport,  ante,  $  70. 

3  Locky  v.  M'Dermott,  8  S.    &  Rawle  (Penn.)  R.  500  ;  Gordon  ». 
Hutchinson,  ante,  §  70. 

4  Per  Garrow,  J.,  in  summing  up  to  the  jury,  in  Butler  v.  Basing,  2  C. 
&  Payne,  R.  14. 

5  Per  Story,  J.,  in  Citizens'  Bank  v.  Nantucket  Steamboat  Company, 
Story  (Cir.  Co.)  R.  32. 


CH.  IV.]  COMMON   CARRIERS.  83 

coaches,  as  common  carriers.  Persons  who  come  within  this 
description,  are  liable  as  common  carriers  for  the  carriage  of 
goods,  provided  they  usually  carry  them  for  hire,  and  so  hold 
themselves  out  to  carry  for  all  persons  indifferently.1  In 
Dwight  v.  Brewster,  it  was  expressly  held,  that  an  established 
practice  of  conveying  for  hire  in  a  stage-coach,  parcels  not 
belonging  to  passengers,  renders  the  proprietors  liable  as 
common  carriers ;  for,  although  the  principal  business  is  to 
carry  passengers,  there  is  no  reason  why  the  proprietors 
should  not  be  common  carriers  of  merchandise.2  But.  the 
proprietors  are  not  of  course  responsible  as  common  carriers  ; 
they  are  so  only  when  they  have  been  in  the  practice  of  re- 
ceiving and  carrying  for  hire  parcels  or  packages  for  persons 
not  passengers  in  their  coaches.3  The  authorities  generally 
leave  no  doubt,  that  where  a  proprietor  of  a  coach  holds  him- 
self out  to  the  public  as  only  engaging  for  the  personal  con- 
veyance of  passengers :  and  refuses  to  allow  his  coach  to  be 
a  conveyance  for  goods  in  general,  the  Courts  would  consider 
him  not  a  common  carrier.  If  it  has  been  the  practice  of  a 
driver  of  one  of  their  coaches  to  carry  articles  for  hire  for 
his  oiun  particular  advantage,  that  fact  alone  will  not  render 
them  liable.4  But  if,  on  the  other  hand,  the  driver  is  to  be 
paid  a  certain  sum  of  money  per  month,  and  the  compensa- 
tion which  shall  be  paid  for  carrying  small  packages,  that 
will  render  the  proprietors  liable  in  case  of  loss ;  unless  the 
owner  of  the  packages  knows  the  arrangement,  and  con- 


1  Jeremy  on  Carr.   11;  Middleton  v.  Fowler  et  al.   1   Salk.  R.  282; 
Story  on  Bailm.  §  500;  2  Bac.  Abr.  Carriers;  Allen  v.  Sewall,  2  Wend. 
(N.  Y.)  R.  327;  and  6  Ib.  335;  Bean  v.   Sturtevant,  8  N.  Hamp.  R. 
325;  Jones  v.  Voorhees,  10  Ohio  R.  145;  Merwin  v.  Butler,  17  Conn.  R. 
138. 

2  Dwight  et  al.  v.  Brewster  et  al.  1  Pick.  (Mass.)  R.  50 ;  McHenry  v. 
Railroad  Co.  4  Harring.  (Del.)  R.  448. 

3  Beekman  v.  Shouse,  5  Rawle  (Penn.)  R.  179. 

4  Bean  v.   Sturtevant,  8  N.  Hamp.  R.  325;   Butler  v.  Basing,  2  C.  & 
Payne,  R.  614  ;  Blanchard  v.  Isaacs,  3  Barb.  (N.  Y.)  R.  388  ;  and  ante, 
§76. 


84  LAW   OF   CARRIERS.  [CH.  IV. 

tracts  with  the  driver  solely  on  his  own  responsibility.1  The 
driver  himself  of  a  stage-coach  generally  employed  by  the 
proprietors,  and  who  has  been  in  the  habit  of  carrying  par- 
cels of  money  for  a  small  compensation,  which  was  uniform, 
whatever  might  be  the  amount  contained  in  any  one  package, 
is  not  subject,  it  has  been  held,  to  the  responsibility  of  a 
common  carrier,  but  only  to  that  of  ordinary  negligence,  or, 
in  other  words,  to  the  responsibility  only  of  a  private  carrier.2 

§  78.  On  the  same  principle  that  wagoners  and  the  propri- 
etors of  stage-coaches  are  liable  as  common  carriers,  when 
they  are  accustomed  to  carry  goods  for  all  persons  indiffer- 
ently, the  proprietors  of  railroad  cars,  Avhich  run  between 
different  places,  and  which  are  used  for  the  purpose  of  so 
carrying,  are  liable  in  like  manner,  and  the  like  reasoning 
applies.3  In  the  case  of  Thomas  v.  Boston  and  Providence 
Railroad  Corporation,  Hubbard,  J.,  in  delivering  the  opin- 
ion of  the  Court,  observed  in  relation  to  the  importance  of 
railroad  companies  as  common  carriers,  as  follows :  "  The 
introduction  of  railroads  into  the  State  has  been  followed  by 
their  construction  over  the  great  lines  of  travel  of  passengers 
and  transportation  of  merchandise  ;  and  the  proprietors  of 
these  novel  and  important  modes  of  travel  and  transporta- 
tion, which  have  received  so  much  public  favor,  have  become 
the  carriers  of  great  amounts  of  merchandise.  They  adver- 
tise for  freight ;  they  make  known  the  terms  of  the  carriage  ; 
they  provide  suitable  vehicles,  and  select  convenient  places 
for  receiving  and  delivering  goods ;  and,  as  a  legal  conse- 

1  Bean,  &c.,  ub.  sup. 

2  Shelden  v.  Robinson,  7  N.  Hamp.  R.  157  ;  and  see  ante,  Chap.  III. 

3  Parker  v.  Great  Western  Railway,  7  Man.  &  Grang.  R.  253  ;  Mus- 
champ  v.   Lancaster  Railway  Co.  8   M.  &  Welsh.  R.  421;  Palmer  v. 
Grand  Junction  Railway  Co.  4  M.  & -Welsh.  R.  749 ;  Pickford  v.  Grand 
Junction   Railway   Co.   12  M.    &  Welsh.  R.  766  ;    Eagle  v.  White,  6 
Whart.  (Penn.)   R.  505;  Weed  v.  S.  and  S.  Railroad  Co.   19  Wend. 
(N.  Y.)  R.  534;  Camden  and  Amboy  Railroad  Co.  v.  Burke,  13  Ib.  60  ; 
Story  on  Bailm.  §  500. 


CH.   IV.]  CARRIERS   BY  WATER.  85 

quence  of  such  acts,  they  have  become  common  carriers  of 
merchandise,  and  are  subject  to  the  provisions  of  the  Com- 
mon Law  which  are  applicable  to  carriers."  1 

§  79.  Though  no  substantial  difference,  says  Sir  William 
Jones,  in  speaking  of  common  carriers,  is  assignable  between 
carriage  by  land  and  carriage  by  water,  or  in  other  words, 
between  a  wagon  and  a  barge,  yet  it  soon  became  necessary 
for  the  Courts  to  declare,  as  they  did  in  the  reign  of  James  I. 
that  a  common  hoyman  is  responsible  for  goods  committed  to 
his  custody,  even  if  he  be  robbed  of  them  ;  and  that,  there- 
fore, the  law  which  had  been  advanced  concerning  a  land 
carrier,  may  be  applied  to  a  bargemaster  or  boatman?  A 
later  English  writer,  on  the  law  of  carriers,  says  that  hoymen 
by  the  custom  of  the  realm  are  bound  to  keep  and  deliver 
goods  safely,  for  their  hire  is  due  by  custom,3  and  that  an 
action  lies  equally  against  a  common  bargeman,  without  any 
special  agreement,  as  against  a  carrier  upon  land.4  In  the 
case  of  the  proprietors  of  the  Trent  Navigation  Company  v. 
Wood,  it  was  declared  by  Lord  Mansfield,  and  the  other 
Judges  of  the  King's  Bench,  that  there  is  no  distinction 
between  a  land  and  a  water  carrier.5 

§  80.  The  rule  as  thus  laid  down  in  England,  in  respect 

1  Thomas  v.  Boston  and  Providence  Railroad  Corp.  10  Met.  (Mass.) 
R.  472. 

2  Jones  on  Bailra.  107.     He  cites  Rich  v.  Kneeland,  Cro.  Jac.  330  ; 
Hob.  R.  30  ;  "the  first  case  of  this  kind,"  said  Lord  Holt,  "  to  be  found 
in  the  books,"  12  Mod.  410.     It  was  a  case  against  a  common  bargeman, 
for  loss  of  property.     Error  was  brought  and  assigned,  that  the  action 
lay  not  against  a  common  bargeman,  without  special  promise  ;  but  all  the 
justices  and  barons  held,  that  case  as  well  lies,  as  against  a  common  car- 
rier by  land. 

3  Jeremy  on  Carr.  7;  1  Roll.  Abr.  C.  2,  15. 

4  Jeremy  on  Carr.  9. 

5  Proprietors  of  Trent  Nav.  Co.  v.  Wood,  3  Esp.  R.  127,  and  4  Doug. 
R.  287,  cited  in  Jeremy  on  Carr.  52,  2  Kent,  Comm.  600,  Story  on  Bailm. 
§489. 

8 


86  LAW   OF   CARRIERS.  [CH.  IV. 

to  carriers  by  water,  has  been  recognized  and  settled  in  this 
country.1  In  New  York,  says  Kent,  the  English  Common 
Law  on  the  subject  of  the  general  responsibility  of  common 
carriers,  has  been  fully,  explicitly,  and  repeatedly  recognized 
in  its  full  extent ;  and  equally  in  respect  to  carriers  by  land 
and  carriers  by  water?  It  was  understood  and  declared  in 
Elliott  v.  Rossell,  upon  a  full  consideration  of  the  subject, 
that  a  water  carrier  warranted  the  safe  delivery  of  goods,  in 
all  cases  but  the  excepted  cases  of  the  act  of  God  and  public 
enemies.3  The  case  of  Aymar  v.  Astor,4  it  is  true,  would 
seem  to  unsettle  the  Common  Law  rule  as  to  carriers  by 
water  ;  but,  if  there  was  not  some  mistake  in  the  report  of 
that  case,  it  was  completely  overruled  by  the  case  of  Allen  v. 
Sewall.5  Although  this  last  case  was  reversed  by  the  Court 
of  Errors,  it  was  upon  a  different  ground,  and  the  general 
doctrine  as  to  the  liability  of  common  carriers  by  water,  was 
not  disturbed  ;  6  and  were  it  so,  it  would  be  against  prior  and 
subsequent  decisions  in  the  same  State.  In  Pennsylvania, 
although  the  English  law.  as  to  the  liability  of  common  car- 


1  Story  on  Bailm.  §  50S. 

2  2  Kent.  Comm.  608. 

3  Elliott  v.  Rossell,  10  Johns.  (N.  Y.)  R.  1.     So  also  held  in  Colt  v. 
M'Mechen,  6  Ib.  160;  Schiefflin  v.  Harvey,  Ib.  170;  Kemp  t>.  Coughtry, 
11  Ib.  107;  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  327;  M'Arthur  v. 
Sears,  21  Ib.  190.     That  the  rule  has  been  recognized  in  other  States  ;  see 
Williams  v.  Grant,  1  Conn.  R.  487  ;  Clarke  v.  Richards,  Ib.  54  ;  Rich- 
ards v.  Gilbert,  5  Day  (Conn.)  R.  415;  Bell  v.  Reed,  4  Binn.  (Penn.)  R. 
127;  Hastings  ».  Pepper,  11  Pick.  (Mass.)  R.  41  ;  Dwight  v.  Brewster, 
1  Ib.  50 ;  M'Clure  v.  Hammond,  1  Bay  (S.  C.)  R.  99  ;  Miles  v.  Johnson, 
1  M'Cord  (S.  C.)  R.  157;  Cohen  v.  Hume,  Ib.  439;  Murphy  v.  Stanton, 
3  Munf.  (Va.)  R.  239  ;  Moses  v.  Norris,  4  N.  Hamp.  R.  304;  Craig  v. 
Childress,  Peck  (Tenn.)  R.  270;  Gordon  v.  Buchanan,  5  Yerg.  (Tenn.) 
R.  71  ;  Turney  v.  Wilson,  7  Ib.  340  ;  Faulkner  v.  Wright,  1  Rice  (S.  C.) 
R.  107;  Williams  v.  Branson,  1  Mur.   (N.  C.)  R.  417  ;  Jones  v.  Pitcher, 
3  Stew.  &  Port.  (Ala.)  R.  135. 

4  Aymar  v.  Astor,  6  Cowen  (N.  Y.)  R.  266. 

5  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  327. 

6  6  Wend.  (N.  Y.)  R.  335. 


CH.  IV.]  CARRIERS   BY   WATER.  87 

Tiers  by  land,  is  admitted,  yet  in  Gordon  v.  Little,1  the  law 
was  considered  with  respect  to  carriers  by  inland  navigation, 
to  be  unsettled  so  far  as  it  regarded  its  application  in  that 
State.  The  carrier  on  inland  waters,  it  was  held  in  that 
case,  would  be  clearly  liable  for  ordinary  negligence  ;  but 
beyond  that  point,  it  was  competent  for  the  common  carrier 
to  prove  a  usage  different  from  the  Common  Law.  It  was, 
however,  adjudged  in  Harrington  v.  M'Shane,2  that  under 
the  usage  of  trade  on  the  ivestern  waters  (the  river  Ohio) 
the  owners  of  steamboats,  carrying  goods  on  freight,  were 
common  carriers,  and  liable  as  such  for  all  losses,  except 
those  occasioned  by  the  act  of  God,  or  the  public  enemy. 
Indeed,  there  is  no  doubt,  that  the  doctrine  of  the  English 
Common  Law,  which  declares,  that  persons  carrying  goods 
for  hire,  by  water,  are  common  carriers,  and  that  they  are 
liable  for  all  losses  happening  otherwise  than  from  the  causes 
just  mentioned,  prevails  generally  in  this  country,  as  a  part 
of  the  Common  Law  of  the  land.3  The  reasons  which 
originated  the  responsibility  of  common  carriers,  the  Supreme 
Court  of  Connecticut  consider,  apply  with  peculiar  force,  as 
it  respects  carriers  by  water  ;  upon  which  element  a  spirit  of 
dangerous  adventure  has  grown  up,  which  disregards  the 
safety,  not  of  property  merely,  but  of  human  lives.4  No 
custom  among  the  freighters  and  owners  of  boats  on  a  navi- 
gable river,  it  has  been  held  in  North  Carolina,  will  excuse 
them  from  the  operation  of  the  law  governing  common 
carriers.6 


1  Gordon  v.  Little,  8  S.  &  Rawle  (Penn.)  R.  533. 

2  Harrington  v.  M'Shane,  2  Watts  (Penn.)  R.  443. 

3  So  considered  by  Kent,  2  Kent,  Comra.  G09 ;  and  by  Story  on  Bailin. 

$497. 

4  Crosby  v.  Fitch,  12  Conn.  R.  419. 

5  Adam  v.  Hay,  3  Mur.  (N.  C.)  R.  149  ;  Spivy  v.  Farmer's  Adm'r. 
1  Ib.  539.     The  owners  of  all  river  craft  in  Canada  are  responsible  for 
losses  occasioned  by  their  own  want  of  care  or  experience,  and  by  that  of 
their  servants.     Borne  ».  Perrault,  Stuart  (Lower  Canada)  R.  591,  note. 


88  LAW   OF   CARRIERS.  [CH.  IV. 

§  81.  Therefore  canal  boatmen,  like  other  boatment1  car- 
rying for  the  public,  for  hire,  are  common  carriers,  and 
responsible  as  such.2  A  captain  of  a  canal  boat  navigating 
Lake  Champlain,  was  held,  in  Vermont,  to  be  liable  as  a 
common  carrier.3  It  was  held,  that  a  boatman  on  the  New 
York  canals,  employed  in  the  transportation  of  property, 
inasmuch  as  he  was  a  common  carrier,  had  no  right  to  sell 
any  article  sent  by  him  to  market,  without  express  authority 
from  the  owner  ;  and  that,  if  an  article  so  sent  by  the  boat- 
man be  purchased  from  him,  the  owner  may  recover  it  from 
the  purchaser.4 

§  82.  So  also  are  ferrymen,  if  they  hold  themselves  out 
to  the  world  as  common  carriers,  which  they  usually  do  ; 5 
although  whether  the  owners  of  a  ferry  are  bound  either  by 
express  contract,  or  by  a  contract  implied  from  usage,  to 
receive  carriages  with  their  contents  on  board,  and  land  them 
at  the  end  of  the  transit  across  the  river,  is  a  question  for  the 
jury  to  determine.6  The  owner  of  a  private  ferry  may  so 
use  it  (although  on  a  road  not  opened  by  public  authority,  or 

1  Harrington  v.  Lyles,  2  Nott  &  M'Cord  (S.  C.)  R.  88;  Williams  v. 
Branson,  iMurph.  (N.  C.)  R.  417;  Smyrl  v.  Niolan,  2  Bail.  (S.  C.)  R. 
421. 

2  Humphreys  v.  Reed,  6  Whart.  (Penn.)  R.  435 ;  De  Mott  v.  Larra- 
way,  14  Wend.  (N.  Y.)  R.  22;  Parsons  v.  Hardy,  Ib.  215  ;  Bowman  r. 
Teall,  23  Wend.  (N.  Y.)  R.  306. 

3  Spencer  v.  Daggett,  3  Verm.  R.  92. 

4  Arnold  v.  Halenbrake,  5  Wend.  (N.  Y.)  R.  33. 

5  Story  on  Bailm.  §  496  ;  2  Kent,  Comm.  599  ;    Smith  ».   Seward, 
3  Barr  (Penn.)  R.  342  ;  Pomeroy  v.  Donaldson,  5  Missou.  R.  30;  Cohen 
v.  Hume,  1  M'Cord  (S.  C.)  R.  444;  1  Nott  &  M'Cord  (S.  C.)  R.   19  ; 
Gardner  v.  Greene,  8  Ala.  R.  96  ;  Rutherford  v.  M'Gowen,  1  Nott  & 
M'Cord  (S.  C.)  R.  17;  Trent  v.  Cartersville  Bridge  Co.  11  Leigh  (Va.) 
R.  521  ;  Spivy  v.  Farmers  Adm'r.  1  Mur.  (N.  C.)  R.  339. 

6  Walker  v.  Jackson,  10  M.  &  Welsh.  R.  161.     It  was  held  in  this 
case,  that  to  rebut  evidence  of  usage  to  take  on  board  and  land  the  car- 
riages of  passengers,  a  notice  stuck  up  at  the  door  of  entrance  of  foot 
passengers,  but  not  visible  to  those  who  came  with  carriages,  nor  shown  to 
have  been  known  to  the  plaintiff — that  the  defendant  did  not  undertake 


CH.  IV.]  STEAMBOATS.  89 

repaired  by  public  labor,)  as  to  subject  himself  to  the  liability 
of  a  common  carrier  ;  and  he  does  do  so,  if  he  notoriously 
undertakes  for  hire,  to  convey  across  the  river  all  persons 
indifferently,  with  their  carriages  and  goods.1  For  articles 
not  usually  carried  across  the  ferry,  and  to  carry  which  is  not 
within  the  ordinary  employment  of  the  owners  of  the  ferry, 
the  owners  would  not  be  liable  for  the  loss  of  them  ;  and 
more  especially  if  the  owners  had  no  knowledge  thereof,  and 
the  compensation  was  only  for  the  personal  emolument  of  the 
boatman.2  But  it  by  no  means  follows,  that  because  the 
Slate,  for  the  security  of  travellers,  and  as  the  price  of  the 
monopoly  granted,  exacts  from  the  ferryman  a  bond  with 
surety,  and  stipulates  for  the  rates  of  ferriage,  that  the  Com- 
mon Law  liability,  which  attaches  to  the  carriage  of  goods 
for  hire,  does  not  arise  ;  and  the  bond  and  surety  are  an 
additional  security  afforded  by  the  State,  because  of  the 
public  nature  of  the  ferryman's  employment.  Nor  does  the 
fact,  that  the  State  regulates  the  rate  of  toll,  at  all  affect  the 
question.3  In  England  a  number  of  statutes  have  been 
passed,  regulating  the  prices  of  the  carriage  of  goods  by 
common  carriers,4  and  it  has  never  been  supposed,  that  the 
passage  of  these  acts  varied  their  liability,  as  common  carriers, 
which  arises  from  the  peculiar  nature  of  their  employment. 

§  83.  The  most  common  and  the  most  important  descrip- 
tion of  carriers  by  water  at  the  present  day,  in  this  country, 
are  the  owners  and  masters  of  steamboats,  which  boats  are, 
in  almost  all  cases,  engaged  in  the  transportation  of  goods, 
as  well  as  of  persons,  for  hire,  and  are  hence  answerable  for 
all  goods  generally  shipped  on  board,  unless  for  losses  hap- 
to  load  or  discharge  horses  or  carriages,  and  would  not  be  responsible  for 
loss  or  damage  done  thereto  —  was  not  admissible. 

1  Littlejohn  v.  Jones,  2  M'Mul.  (S.  C.)  R.365. 

2  See  opinion  of  Story,  J.,  in  Citizens  Bank  v,  Nantucket  Steamboat 
Co.  2  Story  (Cir.  Co.)  R,  33  ;  and  ante,  §  76,  77 ;  and  see  post,  §  84. 

3  Babcock  v.  Beene,  3  Ala.  R.  (N.  S.)  392. 

4  As  may  be  seen  enumerated  in  1  Bac.  Abr.  557. 

8* 


90  LAW   OF   CARRIERS.  [CH.  IV. 

pening  by  the  act  of  God  or  the  public  enemy.1  So  it  has 
been  considered  in  England,2  and  so  expressly  held  in  this 
country  in  the  States  of  New  York,3  Pennslyvania,4  Con- 
necticut,5 South  Carolina,6  Alabama,7  Ohio,8  Illinois,9  and 
Tennessee.10 

1  Story  on  Bailm.  §  496;  2  Kent,  Comm.  599  ;  Jenckes  v.  Coleman, 
2  Sumn.  (Cir.  Co.  R.  221;  Patton  v.  M'Grath,  Dudley  (S.  C.)  R.  159, 
a  strong  case  of  the  responsibility  of  the  owners  of  steamboats,  as  com- 
mon carriers.     It  was  held,  by  the  Supreme  Court  of  Florida,  that  where 
the  declaration  alleges,  that  the  defendant  followed  the  occupation  of 
master  or  owner  of  a  steamboat  plying  on  a  navigable  river,  this  is  a  suffi- 
cient averment  to  fix  the  character  which  the  Common  Law  attaches  to 
masters  and  owners  of  ships,  steamboats,  &c.,  so  as  to  charge  the  defend- 
ant with  a  breach  of  the  duty  which  alone  results  from  that  character, 
without  an  express  averment,  that  defendant  was  a  "common  carrier." 
Bennett  v.  Filyaw,  1  Florida  R.  403. 

2  Siordet  v.  Hall,  4  Bing.  R.  607  ;  Gatliffe  v.  Bourne,  5  Scott,  R.  667 
and  4  Bing.  N.  Cas.  314  ;  Muddle  v.  Stride,  9  C.  &  Payne,  R.  380. 

3  Allen  v.   Sewall,  2  Wend.  (N.  Y.)   R.  327  ;    Bank  of  Orange  v. 
Brown,  3  Ib.  158;  and  that  the  owners  of  steamboats,  railroads,  &c.,  are 
held  to  be  common  carriers  in  New  York,  Hollister  v.  Nowlen,  19  Wend. 
(N.  Y.)  R.  234  ;  Cole  «.  Goodwin,  Ib.  251,  and  the  cases  therein  referred 
to  by  Justices  Bronson  and  Cowen  ;  Powell  v.  Myers,  26  Wend.  (N.  Y.) 
R.  591  ;  M'Arthur  o.  Sears,  21  Ib.  190. 

4  Harrington  v.  M'Shane,  2  Watts  (Penn.)  R.  443  ;  Warden  v.  Green, 
6  Ib.  424. 

5  Hale  v.  New  Jersey  Steam  Nav.  Co.  15  Conn.  R.  539. 

6  Steamboat  Co.  v.  Bason,  Harp.  (S.  C.)  R.  262.     The  owners  of  a 
steamboat  employed  in  carrying  goods  for  hire  between  Charleston  and 
Columbia,  where  held  to  be  common  carriers.    Swindler  v,  Hilliard,  2  Rich. 
(S.  C.)  R.  286  ;  Faulkner  ».  Wright,  1  Rice  (S.  C.)  R.  107. 

7  Jones  v.  Pitcher,  3  Stew.  &  Port.  (Ala.)  R.  136  ;  Sprowl  r.  Kellar, 
4  Ib.  382.     In  the  former  case,  the  Supreme  Court  of  Alabama  held,  that 
a  charge  in  a  declaration  against  joint  owners  of  a  steamboat,  "  that  the 
defendants  before  and  at  the  time  of  shipment  were  the  owners  and  pro- 
prietors of  the  boat,  and  co-partners  in  freighting  ;  and  which  boat  had 
been  usually  employed  in  conveying  and  transporting  cotton,  and  other 
merchandise,  for  hire,"  &c.,  was  a  sufficient  averment  of  the  character  of 
the  joint  owners,  as  common  carriers,  to  authorize  a  recovery. 

8  Bowman  v.  Hilton,  11  Ohio  R.  303. 

9  Danseth  v.  Wade,  2  Scam.  (111.)  R.  289. 

10  Porterfield  v.  Humphrey,  8  Humph.  (Tenn.)  R.  497. 


CH.  IV.]  STEAMBOATS.  91 

§  84.  But  a  steamboat  may  be  employed  solely  in  the 
transportation  of  passengers  ;  then  the  liability  is  incurred 
only  to  the  extent  of  the  common  rights,  duties,  and  obliga- 
tions of  carrier  vessels  of  passengers ;  or  it  may  be  solely 
employed  in  the  transportation  of  goods  and  merchandise, 
and  then,  like  other  carriers  of  the  like  character,  the 
owners  are  bound  to  the  common  duties,  obligations,  and 
liabilities  of  common  carriers.  Or,  the  employment  may  be 
limited  to  the  mere  carriage  of  particular  kinds  of  property 
and  goods  ;  and  when  this  is  so,  and  the  fact  is  known  and 
avotved,  the  owners  will  not  be  liable  as  common  carriers, 
for  any  other  goods  or  property  intrusted  to  their  agents 
without  their  consent.1 

§  85.  The  master  of  a  steamboat,  like  a  wagoner,  or  the 
driver  of  a  stage-coach,  carrying  parcels  for  hire  on  his  own 
account?  cannot  of  course  bind  the  owners  as  common 
carriers.3 

§  86.  Whenever  steamboats  are  employed  out  of  the 
course  of  their  particular  employment,  as  for  instance,  in 
towing  a  freight  vessel,  they  are  bound  to  no  more  than 
ordinary  care  and  skill  in  management :  they  are  not  then 
quo  ad  hoc  common  carriers,  and  the  law  of  common  carriers 
is  not  applicable  to  them.4  Where  a  steamboat  company, 
whose  regular  employment  was  to  transport  passengers  and 
merchandise,  contracted  for  hire  to  take  a  vessel  through 
the  ice  out  of  the  harbor  of  Baltimore,  and  there  was  no 
express  agreement,  that  it  should  be  responsible  for  all  losses 
or  injuries  which  might  arise,  should  the  vessel  not  be  carried 
through  in  safety ;  it  was  held,  that  the  company  was  only 


1  Citizens  Bank  v.  Nantucket  Steamboat  Co.  2  Story  (Cir.  Co.)  R.  16. 

2  See  ante,  §  76,  77,  82. 

3  Citizens  Bank  v.  Nantucket  Steamboat  Co.  2  Story  (Cir.  Co.)  R.  49; 
Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  327. 

4  Caton  v.  Barney,  13  Wend.  (N.  Y.)  R.  387. 


92  LAW    OF    CARRIERS.  [CH.  IV. 

bound  to  use  reasonable  efforts,  care  and  diligence,  and  was 
not  bound  to  the  extent  of  common  carriers.1  So  far,  indeed, 
from  being  common  carriers,  it  is  questionable  whether  they 
are  carriers  or  bailees  of  any  description,  for  the  property 
towed  is  not  delivered  to  them,  nor  placed  within  their  ex- 
clusive control ;  but  it  remains  in  the  possession,  and  for 
most  purposes,  in  the  exclusive  care  of  the  owners  or  their 
servants.2  It  was  held,  in  Alexander  v.  Greene,  that  the 
owners  of  a  steamboat  undertaking  for  hire  to  tow  a  canal 
boat  and  her  cargo  on  the  Hudson  river,  while  the  master 
and  hands  of  the  canal  boat  remain  on  board,  and  in  posses- 
sion and  charge  of  the  property,  are  not  common  carriers, 
but  ordinary  bailees  for  hire  ;  and  as  it  was  stipulated,  that 
the  canal  boat  was  to  be  towed  at  the  risk  of  her  master,  the 
owners  of  the  steamboat  were  not  responsible  even  for  the 
want  of  ordinary  care  and  skill.3 

§  87.  The  "  subtlety  of  the  human  mind,"  observes  Sir 
William  Jones,  "  in  finding  distinctions,  has  no  bounds  ;  and 
it  was  imagined,"  he  says,  "  by  some,  that  whatever  might 
be  the  obligation  of  a  barge-master,  there  was  no  reason  to 
be  equally  rigorous  in  regard  to  the  master  of  a  ship  ;  who, 
if  he  carry  goods  for  a  profit,  must  indubitably  answer  for 
ordinary  neglect  of  himself  or  his  mariners,  who  ought  not, 
they  said,  to  be  chargeable  for  the  violence  of  robbers"  4  It 

1  Penn.  Del.  and  Md.  Nav.  Co.  v.  Dandridge,  8  G.  &  Johns.  (Md.)  R. 
109. 

2  Per  Bronson,  J.  in  Wells  v.  Steam  Navigation  Co.  2  Comst.  (N.  Y.) 
R.  204. 

3  Alexander  v.  Greene,  3  Hill  (N.  Y.)  R.  1.     Though  common  car- 
riers cannot,  in  New  York  contract  for  a  restricted  responsibility  (see  on 
this  subject  post,  Chap.  VII.)  yet  other  bailees  for  hire  may  so  contract, 
and   leave  the  whole  risk,  in  cases  free  from  gross  negligence,  on   the 
owner  of  the  property.     The  owners  of  the  steamboat  in  this  case,  in 
the  particular  business  in  which  they  undertook   to  engage,  were   only 
ordinary  bailees  for  hire,  and  therefore  might  contract  for  the  restricted 
responsibility  for  which  they  did  contract.     See  ante,  §  59. 

*  Jones  on  Bailm.  109. 


CH.  IV.]       VESSELS  ON  FOKEIGN  VOYAGE.  93 

was,  however,  otherwise  decided,  he  informs  us,  in  the  great 
case  of  Morse  v.  Sine.1  In  this  case,  which  was  decided 
upon  great  consideration,  it  was  held  by  the  Court  of  King's 
Bench,  in  the  reign  of  Charles  II.  that  the  master  of  a  ves- 
sel employed  to  carry  goods  beyond  sea,  in  consideration  of 
the  freight,  was  answerable  as  a  common  carrier.  The  cir- 
cumstances of  the  case  were,  that  eleven  persons  came  on 
board  of  the  ship  in  the  river,  under  pretence  of  impressing 
seamen,  and  forcibly  took  the  chests  which  the  defendant  had 
engaged  to  carry  ;  and  though  the  master  was  entirely  blame- 
less, yet  Sir  Matthew  Hale  and  his  brethren,  having  heard 
both  civilians  and  common  lawyers,  and  among  them  Mr. 
Holt  for  the  plaintiff,  determined  on  the  principles  which 
have  been  advanced,  in  respect  to  the  responsibility  of  com- 
mon carriers,  that  the  bailor  ought  to  recover.  This  case, 
says  Sir  William  Jones,  was  frequently  afterwards  men- 
tioned by  Lord  Holt,  who  said,  that  the  declaration  was 
drawn  by  one  of  the  greatest  pleaders  in  England.2  It  was 
subsequently  declared  by  Lord  Hardwicke,  that  the  action 
lay  equally  against  masters  and  owners  of  vessels  ;  3  and  in 
Goffv.  Clinkard,4  the  doctrine  in  the  above  cases  was  recog- 
nized. In  the  case  of  the  Proprietors  of  the  Trent  Naviga- 
tion Company  v.  Wood,5  the  action  was  brought  to  recover 
damages  of  the  defendants  for  goods  undertaken  by  the 
plaintiffs  to  be  carried  from  Hull  to  Gainsborough,  the  vessel 
being  sunk  by  striking  against  an  anchor  in  the  river,  to 
which  no  buoy  had  been  fixed  to  give  notice  of  the  danger  ; 
and  it  was  held,  "  that  there  being  no  case  which  made  any 
distinction  between  a  land  and  a  water  carrier,  and  this 
injury  arising  from  the  negligence  of  a  private  man,  if  this 


1  Morse  v.  Slue,  1  Ventris,  R.  190,  238 ;  Rayra.  R.  220. 

2  Jones,  ub.  sup.  who  refers  to  2  Ld.  Raym.  R.  920,  Coggs  v.  Ber- 
nard, Appx. 

3  Boucher  v.  Lawson,  Cases  temp.  Hardw.  183. 

4  Goff  v.  Clinkard,  cited  in  1  Wils.  R.  282. 

5  Proprietors  of  Trent  Nav.  Co.  v.  Wood,  3  Esp.  R.  127. 


94  LAW  OF   CARRIERS.  [CH.  IV. 

sort  of  negligence  were  to  excuse  the  carrier,  wherever  he 
finds  an  accident  has  happened  to  goods,  from  the  miscon- 
duct of  a  third  person,  he  would  give  himself  no  further 
trouble  about  the  recovery  of  them  ;  and  although  this  might 
be  a  sea  voyage,  and  it  was  usual  to  insure,  the  merchant  is  not 
bound  to  insure,  nor  does  that  vary  the  obligation"  1 

§  88.  The  doctrine  of  the  English  Common  Law,  which 
renders  persons  transporting  goods  for  hire  by  water,  for  all 
persons  indifferently,  liable  as  common  carriers,  applies  as 
well  to  external  as  to  internal  navigation,  is  the  established 
doctrine  in  this  country.2  In  Massachusetts  it  has  been 
expressly  declared,  that  a  carrier  by  water  by  inland  naviga- 
tion, is  not  only  a  common  carrier,  but  one  also  who  trans- 
ports goods  from  port  to  port  coastwise,  or  to  or  from  foreign 
countries.3  In  Crosby  v.  Fitch,  in  Connecticut,4  the  Court 
says,  "  that  the  defendants,  as  owners  of  this  vessel,  (a  sloop 
running  between  New  York  and  Norwich  in  Connecticut,) 
were  common  carriers,  and,  as  such,  liable  for  all  the  respon- 
sibilities resulting  from  that  employment,  is  well  settled  in 
the  American  Courts  ;  and  in  England  it  was  never  disputed 
as  a  principle  of  mercantile  law."  The  doctrine  has  been 
extensively  considered  in  New  York,  and  it  is  in  that  State 
clearly  understood  to  be,  that  masters  and  owners  of  vessels, 
who  undertake  to  carry  goods  for  hire,  are  liable  as  common 
carriers,  whether  the  transportation  be  from  port  to  port 
within  the  State,  or  beyond  sea,  at  home  or  abroad,  and 
they  are  answerable  as  well  by  the  Marine  Law  as  the 
Common  Law,  for  all  loss  not  arising  from  inevitable  acci- 
dent, or  such  as  could  not  be  foreseen  or  prevented  ;  except 


1  See  also  Dale  v.  Hall,  1  Wils.  R.  282. 

2  2  Kent,  Comra.  599,  600,  606,  608;  Story  on  Bailm.  §  497,  501. 
And  see  ante,  authorities  referred  to  in  §  79,  80  ;  Barber  v.  Brace,  3  Conn. 
R.  9 ;  Williams  v.  Grant,  1  Ib.  487;  Crosby  v.  Fitch,  12  Ib.  410. 

3  Per  Shaw,  C.  J.  in  Hastings  v.  Pepper,  11  Pick.  (Mass.)  R.  41. 

4  Crosby  v.  Fitch,  ub.  sup. 


CH.  IV.]  VESSELS   ON    FOREIGN   VOYAGE.  95 

so  far  as  the  exception  is  extended  to  perils  of  the  sea  by  the 
special  terms  of  the  contract,  contained  in  the  charter  party 
or  bill  of  lading.1  There  is,  indeed,  no  doubt  that  such  is 
the  prevailing  doctrine  in  ihe  United  States,  as  part  of  the 
Common  Law  of  the  land  ;  the  slightest  neglect,  levissima 
culpa,  renders  the  master  of  a  vessel  liable.2 

§  89.  But  it  is  necessary  that  a  ship,  like  a  ferry  boat,3 
or  steamboat,4  should  have  and  retain  her  character  and 
employment,  as  a  common  carrier  ;  and  when  it  is  said,  that 
the  owners  and  masters  of  ships  are  treated  as  common 
carriers,  it  is  to  be  understood  of  such  ships  as  are  employed 
for  the  transportation  of  merchandise  for  all  persons  indif- 
ferently.5 Should  the  owner  of  a  ship  employ  it  on  his  own 
account,  and,  for  the  special  accommodation  of  a  particular 
individual,  take  goods  on  board  for  freight,  (not  receiving 
them  for  all  persons  indifferently,)  he  does  not  come  within 
the  definition  of  a  common  carrier,  he  not  holding  himself 
out  as  engaged  in  a  public  employment.6  If  the  whole  ship 
is  chartered  by  the  owner  to  a  single  person,  for  a  particu- 
lar voyage  out  and  home,  for  a  specified  freight,  under  a 
charter  party,  the  charter  party  will  be  held  to  regulate  the 
rights,  duties,  and  responsibilities  of  the  parties,  and  super- 
sede those  of  the  ship  owner,  as  a  common  carrier.7 

1  Elliott  «.  Rossell,  10  Johns.  (N.  Y.)  R.  1  ;  Kemp  t>.  Coughtry,  11 
Ib.  107  ;  M'Arthur  v.  Sears,  21  Wend.  (N.  Y.)  R.  190. 

2  2  Kent,  Comm.  609.     With  respect  to  the  owners,  although  they  do 
not  in  truth  enter  into  the  undertaking,  they  are  yet  liable,  as  well  in 
respect  of  the  freight  received,  as  also  for  the  appointing  of  the  master, 
whom  they  may  elect  and  control  ;  but  when  charged  in  point  of  contract, 
as  employers,  they  must  all  be  joined.     Boson  v.  Sandford,  2  Salk.  R. 
439  ;  3  Lev.  R.  258  ;  Carth.  R.  62. 

3  See  ante,  $  82. 

4  See  ante,  §  84,  85. 

5  Story  on  Bailm.  §  501 ;  Abbott  on  Shipp.  Pt.  3,  ch.  2.     But  see  ante, 
modern  definition  of  common  carriers,  $  70. 

6  Story  on  Bailm.  $501. 

7  2  Kent,  Comm.  600  ;  Story  on  Agency,  §  452-461  ;  Ellis  v.  Turner, 


96  LAW   OF   CARRIERS.  [CH.  IV. 

§  90.  Carriers  by  water  being  liable  at  Common  Law  to 
the  same  extent  as  carriers  by  land,  and  as  their  responsi- 
bility was  more  extensive  and  their  risk  greater,  from  the 
facilities  for  the  commission  of  acts  of  fraud  and  violence 
upon  the  water,  it  was  deemed,  in  England,  a  proper  case  for 
legislative  interference,  to  a  limited  extent.  The  statutes  of 
7  Geo.  II.  ch.  15,  and  26  Geo.  III.  ch.  159,  exempted  owners 
of  vessels  from  responsibility  as  common  carriers  for  losses 
by  fire ;  and  provided,  further,  that  the  owner  should  not  be 
liable,  for  the  loss  of  gold,  silver,  diamonds,  watches,  jewels, 
or  precious  stones,  by  robbery  or  embezzlement,  unless  the 
shipper  inserted  in  the  bill  of  lading,  or  otherwise  declared 
in  writing  to  the  master  or  owner  of  the  vessel,  the  nature, 
quality,  and  value  of  the  articles ;  nor  should  he  be  liable 
for  embezzlement,  or  loss  or  damage  to  the  goods  arising 
from  any  act  or  neglect,  without  his  fault  or  privily,  beyond 
the  value  of  the  ship  and  freight ;  nor  should  part-owners, 
in  those  cases,  be  liable  beyond  their  respective  shares  in  the 
ship  and  freight.1  The  statute  53  Geo.  III.  further  limited 
the  responsibility  of  ship  owners  for  damage  done,  without 
their  fault,  to  other  vessels  or  their  cargoes,  to  the  value  of 
the  ship  doing  the  damage,  at  the  time  of  the  accident.2  In 
Massachusetts,  the  responsibility  of  owners  was,  by  a  statute 
passed  in  1818,  and  re-enacted  in  the  Revised  Statutes  of 
1835,3  limited  to  the  value  of  their  interest  in  the  ship  and 
freight,  in  cases  where  they  were  liable  for  loss  or  damage 
occasioned  by  the  acts  of  the  master  or  mariners.  By  the 
statute  of  New  York,  of  April  13,  1820,  ch.  202,  the  conduct 
of  canal  boats  are  under  specific  regulations,  and  freight 


1  T.  R.  531,  cited  in  Jeremy  on  Carr.  48  ;  Cavenagh  v.  Such,  Price,  R. 
328  ;  Williams  v.  Cranston,  2  Stark.  R.  82  ;  Hyde  v.  Trent  and  Mersey 
Nav.  Co.  5  T.  R.  397,  cited  in  Jeremy  on  Carr.  64 ;  Boyce  v.  Chapman, 

2  Bing.  N.  Cas.  222. 

1  Wilson  ».  Dickson,  2  B.  &  Aid.  R.  2. 

2  See  2  Kent,  Comm.  606. 

3  Part  1,  tit.  12,  ch.  32,  sec,  1,  2. 


CH.  IV.]  VESSELS   ON   FOREIGN  VOYAGE.  97 

boats  are  bound  to  afford  facilities  to  the  passage  of  packet 
or  passenger  boats,  through  the  locks  and  on  the  canals,  and 
the  masters  and  owners  are  held  responsible  in  damages  for 
injuries  resulting  from  any  undue  non-compliance  with  their 
duty.1 

§  91.  In  respect  to  the  acts  of  agents,  and  persons  in  the 
employment  of  a  carrier,  the  maxim  respondet  superior  ap- 
plies, and  he  is  equally  liable  for  their  acts  and  for  his  own. 
In  North  Carolina,  it  has  been  held,  that  if  a  man's  slave  acts 
for  him  as  a  ferryman,  the  master  is  considered  a  common 
carrier.2  Any  arrangement  made  between  a  carrier  and  his 
agent  or  servant,  whereby  the  latter  are  to  be  paid  for  the 
carriage  of  particular  parcels,  will  not  exempt  the  carrier 
from  responsibility  for  the  loss  of  such  parcels,  unless  such 
an  arrangement  is  known  to  the  owner  thereof,  so  that  he 
contracts  exclusively  with  the  servant  or  agent.3  It  has  been 
already  shown,  that  the  mere  fact,  that  the  driver  of  a  stage- 
coach, or  the  master  of  a  steamboat,  is  accustomed  to  carry 
packages  of  a  particular  description,  especially  for  his  own 
personal  emolument,  will  not  make  the  proprietors  responsi- 
ble therefor,  as  common  carriers.4 


1  Farnsworth  v.  Groot,  6  Cow.  (N.  Y.)  R.  608 ;  and  see  2  Kent,  Comm. 
606,  note  b. 

2  Spivy  v.  Farmer's  Adm'r,  1  Mur.  (N.  C.)  R.  339. 

3  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  327;  Story  on  Bailm.  506  ; 
Citizens  Bank  v.  Nantucket  Steamboat  Co.  2  Story  (Cir.  Co.)  R.  16. 
Bostwick  v.  Champion,  11  Wend.  (N.  Y.)  R.  580.     Every  person  em- 
ployed by  one  who  is  a  common  carrier,  whether  by  the  name  of  sub- 
contractor, servant,  or  otherwise,  to  perform  any  part  of  the  work  which 
the  carrier  has  undertaken  to  perform  ;  and  every  person  employed  by 
such  person  for  that  purpose,  it  has  been  held,  is  a  "  servant  in  the  employ 
of  the  carrier,"  with  the  11  Geo.  4  &  Will.  4,  which  renders  common  car- 
riers liable  for  the  felonous  acts  of  servants  in  their  employ.     Machu  v. 
London  &  Southwestern  Railr.  Co.  12  Jur.  501  ;  17  Law  Journ.  271. 

4  Bean  t>.  Sturtevant,  8  N.  Hamp.  R.  325,  cited  ante,  §  77,  and  see  ante, 
§  85.     For  the  doctrine  of  the  liability  of  master  for  the  acts  and  negli- 
gence of  his  agents  and  servants,  see  also  post,  §  572  -  582. 

9 


98  LAW   OF   CARRIERS.  [CH.  IV. 

§  92.  As  an  action  lies  against  a  principal  for  an  injury 
done  to  another,  through  the  negligence  or  unskilfulness  of 
his  servants,  while  acting  in  his  employment,  so  partners  are 
responsible  in  the  same  way,  for  the  conduct  of  one  of  them 
as  their  servant,  in,  for  instance,  driving  against  carriages,  or 
running  down  ships.  In  these  cases,  if  the  carriage  or  the 
ship  by  which  the  damage  is  done  is  the  joint  property  of  the 
partners,  it  is  unimportant  whether  it  was  under  the  guidance 
of  one  of  the  partners,  or  under  the  care  and  management  of 
their  servants,  for  quifacit  per  aliam  facii  per  se.1 

§  93.  It  is  not  unusual  for  several  persons  to  be  engaged 
as  partners  in  carrying  goods  by  land,  and  by  contract  inter 
se,  one  of  them  is  to  find  horses  and  drivers  for  a  certain  dis- 
tance on  the  route,  and  the  other  for  the  remaining  distance  ; 
and  when  such  an  arrangement  is  made,  they  are  jointly 
responsible  as  partners,  throughout  the  entire  route.  And, 
although  all  the  partners  may  not  have  an  interest  in  the 
vehicle,  yet  all  will  be  held  responsible,  as  such,  upon  any 
contract  made  by  their  agent,  for  the  carriage  of  any  pack- 
age sent  by  either  of  the  vehicles,  and  consequently,  for  the 
loss  of  it.2  In  a  case,  where  A,  the  keeper  of  a  coach-office, 


1  Bostwick  v.  Champion,  11  Wend.  (N.  Y.)  R.  580,  and  the  authorities 
there  cited  by  Nelson,  J. 

2  Story  on  Bailm.    §  506  ;    and   see   Bostwick  v.  Champion  ub.  sup. 
Where  the  defendant  and  one  Dyson  were  carriers  from  London  to  Gos- 
port,  and  by  an  arrangement  between  them,  Dyson    horsed  the  wagon 
from  London  to  Farnham,  and  the  defendant  then  conducted  to  Gosport, 
and  at  the  time  the  mischief  complained  of  happened,  the  wagon  was 
drawn  by  Dyson's  horses,  and  driven  by  a  servant  of  his,  who  had  been 
hired  by,  and  received  wages  from,  Dyson,  and  with  whose  employment 
the  defendant  had  no  concern  whatever,  but  the  wagon  itself  was  the  pro- 
perty of  the  defendant;  it  was  held,  that  the  defendant  and  Dyson  were 
both  jointly  interested  in  the  profits,  and  that,  notwithstanding  this  private 
agreement,  were  jointly  responsible  to  third  persons  for  the  negligence  of 
their  drivers  throughout  the  whole  distance.     Waland  v.  Elkins,  1  Stark. 
R.  272.     Since  it  was  no  objection,  said  the  Court,  that  Dyson  was  not 
joined,  the  case  was  the  same  as  if  the  defendant  received  all  the  profits. 


CH.  IV.]  CARRIERS   IN   CO-PARTNERSHIP.  99 

and  part  owner  in  several  coaches,  made  a  contract  with  B, 
for  the  carriage  of  parcels  which  he  was  in  the  habit  of  send- 
ing from  that  office  to  various  places ;  it  was  held,  that  this 
bound  the  owners  of  all  the  coaches,  in  which  A  was  a  part 
owner,  and  as  well  those  who  became  partners  after  the 
making  of  the  contract,  as  those  who  were  so  before.1 
Thus,  also,  where  A,  B,  and  C  run  a  line  of  stage-coaches 
from  Utica  to  Rochester,  and  the  route  was  divided  between 
into  sections,  the  occupant  of  each  section  furnishing  his  own 
carriages  and  horses,  hiring  drivers,  and  paying  the  expenses 
of  his  own  section  ;  and  the  money  received  as  the  fare  of 
passengers,  deducting  therefrom  only  the  tolls  paid  at  the 
turnpike  gates,  was  divided  among  the  parties  in  proportion 
to  the  number  of  miles  run  by  each  ;  and  an  injury  was  done 
to  a  third  person  through  the  negligence  of  the  driver  of  the 
coach  of  A  ;  it  was  held,  that  a  joint  action  on  the  case  at  the 
suit  of  the  party  injured,  lay  against  B  and  C,  as  well  as  A.2 

§  94.  So,  likewise,  with  shippers.  Where  an  association 
was  formed  between  shippers  on  Lake  Ontario,  and  the  own- 
ers of  canal  boats  on  the  Erie  Canal,  for  the  transportation  of 
goods  and  merchandise  between  the  city  of  New  York,  and 
the  ports  and  places  on  Lake  Ontario  and  the  river  St.  Law- 
rence, and  a  contract  was  entered  into  by  the  agent  of  such 
association  for  the  transportation  of  goods  from  the  city  of 
New  York  to  Ogdensburg,  on  the  river  St.  Lawrence,  and 
the  goods  were  lost  on  Lake  Ontario  ;  it  was  held,  that  all 
the  defendants  were  liable  for  the  loss,  although  some  of  them 
had  no  interest  in  the  vessel  navigating  the  lake.3 


1  Helsby  v.  Meats  et  al.  5  B.  &  Cres.  R.  504. 

2  Bostwick  v.  Champion,  ub.  sup  ;  and  see  Weed  t>.  Schenectady  and 
Saratoga  Railroad  Co.  19  Wend.  (N.  Y.)  R.  534. 

3  Fairchild  v.  Slocum,  19  Wend.  (N.  Y.)  R.  329.     This  is  not  like  the 
case  of  Roberts  v.  Turner,   12  Johns.  R.   232.      There   the  defendant 
was  a  mere  warehouse-keeper  and  forwarder  of  goods  ;  and  the  course  of 
business  was,  for  him  to  receive  merchandise  or  produce  at  his  store,  and 


100  LAW   OF   CARRIERS.  [CH.  IV. 

§  95.  Ill  the  absence  of  any  partnership  connection  between 
one  route  and  another  one  united  with  it,  persons  receiving 
goods,  as  common  carriers,  continue  to  be  responsible,  in  that 
character,  until  the  goods  are  delivered  at  the  place  to  which 
they  are  directed,  even  if  the  place  to  which  they  are  directed 
is  beyond  the  limits  of  the  place  to  which  they  are  accus- 
tomed to  carry  and  deliver.  A  parcel  was  delivered  at 
Lancaster,  to  the  Lancaster  and  Preston  Railway  Company, 
directed  to  a  person  at  a  place  in  Derbyshire.  The  person 
who  brought  it  to  the  station  offered  to  pay  the  carriage,  but 
the  book-keeper  said,  it  had  better  be  paid  by  the  person  to 
whom  it  was  directed,  on  the  receipt  of  it.  The  company 
were  known  to  be  the  proprietors  of  the  line  only  as  far  as 
Preston,  where  the  railway  unites  with  another  line  called 
the  North  Union  line,  and  that  afterwards  with  a  third  line, 
and  so  on  into  Derbyshire.  The  parcel  having  been  lost 
after  it  had  been  forwarded  from  Preston,  it  was  held,  that 
the  company  were  liable  for  the  loss.1  That  a  railroad  com- 
pany, undertaking  to  carry  passengers  and  their  baggage 
beyond  the  limits  of  their  own  road,  are  beyond  doubt  liable 
for  losses  which  occur  on  any  part  of  the  route  in  respect  to 
which  the  contract  is  made,  was  held,  in  the  case  of  The 
Schenectady  and  Saratoga  Railroad  Company  ;  who,  having 
undertaken  to  carry  from  the  Springs  at  Saratoga  to  Albany, 
they  could  not  be  allowed  to  say,  that  they  were  carriers  no 
farther  than  Schenectady,  the  termination  of  their  own  road.2 
Common  carriers  employed  in  the  transportation  of  goods  on 
the  Hudson  River,  between  New  York  and  Albany,  if  they 
receive  a  package  directed  to  a  place  beyond  Albany,  and 


forward  it  by  boatmen  on  the  Mohawk  River.     He  was  not,  therefore,  a 
carrier,  but  an  intermediate  agent  between  the  owner  and  the  carrier. 

1  Muschamp  v.  Lancaster  and  Preston  Railway  Co.  8  M.  &  Welsh.  R. 
421. 

2  Weed  ».  Schenectady  and  Saratoga  Railroad  Co.  19  Wend.  (N.  Y.) 
R.  534.     The  same  doctrine  recognized  by  the  Supreme  Court  of  Florida. 
Bennett  v.  Filyaw,  1  Florida  R.  403. 


OH.  IV.]  TERMINUS  OP  LIABILITY.  101 

give  an  acceptance  of  it,  without  specially  limiting  their 
responsibility  no  farther  than  Albany,  are  held  liable  for  the 
loss  of  the  goods,  happening  after  their  delivery  at  Albany. 
The  box  in  question,  was  directed  to  "  J.  Petrie,  Little  Falls, 
Herkimer  Co.,"  and  was  delivered  on  board  for  the  express 
purpose  of  transshipment  to  him,  and  was  there  received  by 
the  agent,  who  gave  his  receipt  therefor.  This,  in  effect,  the 
Court  considered,  was  the  agent's  saying  to  the  plaintiff,  that 
he  would  take  and  deliver  it  at  the  place  of  destination.1 

§  96.  The  preceding  cases  are  different  from  that  of  Gar- 
side  v.  Trent  and  Mersey  Navigation  Company,  where  the 
defendants  undertook  to  carry  goods  from  Stourport  to  Man- 
chester, and  to  forward  them  from  thence  to  Stockport ;  they 
were  not  held  liable  after  the  goods  had  been  safely  lodged  at 
Manchester,  because  it  appeared,  that  they  were  only  common 
carriers  as  far  as  Manchester,  and  their  obligation  ceased  as 
soon  as  they  had  deposited  them  there  in  safety.  They  then 
took  charge  of  the  goods  merely  as  warehousemen,  for  the 
convenience  of  the  plaintiff,  to  keep  them  till  the  Stockport 
carrier  called  for  them.2 

§  97.  If  common  carriers  then  intend,  in  any  case,  to  limit 
their  responsibility,  in  that  character,  short  of  the  place  to 
which  the  goods  are  directed,  they  are  bound  in  some  way 
to  indicate  such  intent?  Otherwise,  if  such  place  was  no 
more  than  one  mile  beyond  the  terminus  of  the  carrier's 


1  St.  John  v.  Van  Stantwood,  25  Wend.  (N.  Y.)  R.  660.     But  this 
decision  was  overruled  by  the  Court  of  Errors  on  the  ground^  that  the  evi- 
dence was  such  that  the  carriers  ceased  to  be  such  on  the  arrival  of  the 
goods  at  Albany,  and  that  they  became  then  mere  forwarders  of  the  goods. 
Vanstantwood  v.  St.  John,  6  Hill  (N.  Y.)  R.  157.     As  to  the  distinction 
between  carriers  and  forwarders,  see  ante,  $  75,  and  see  also  post,  §  281. 

2  Garside  v.  Trent  and  Mersey  Navigation  Co.  4  T.  R.  581.     And  see 
Boehm  v.  Coombe,  2  M.  &  Selw.  R.  172  ;  Thomas  v.  Boston  and  Prov. 
Railroad  Co.  10  Met.  (Mass.)  R.  472  ;  and  see  ante,  §  75. 

3  St.  John  v.  Van  Stantwood,  ub.  sup. 

9* 


LAW   OF    CARRIERS.  [CH.   IV. 

established  route,  and  the  goods  are  lost  on  the  other  side  of 
it,  the  owner  of  the  goods  is  to  find  out  somebody  or  other, 
•who  is  to  be  liable,  in  respect  of  the  carriage  for  that  one  mile. 
It  was  said  in  the  English  Court  of  Exchequer,  by  Lord 
Abinger,  C.  B.,  in  the  case  above  cited  :  —  "  Particular  cir- 
cumstances might  no  doubt  be  adduced  to  rebut  the  inference 
which,  primd  facie,  must  be  made  of  the  defendants  having 
undertaken  to  carry  the  goods  the  whole  way.  The  taking 
charge  of  the  parcel  is  not  put  as  conclusive  evidence  of  the 
contract  sued  on  by  the  plaintiff;  it  is  only  primd  facie  evi- 
dence of  it ;  and  it  is  useful  and  reasonable  for  the  benefit 
of  the  public,  that  it  should  be  so  considered.  It  is  better 
that  those  who  undertake  the  carriage  of  parcels,  for  their 
mutual  benefif,  should  arrange  matters  of  this  kind  inter  se, 
and  should  be  taken  each  to  have  made  the  others  their  agents 
to  carry  forward."  * 

§  98.  Carriers  who  contract  with  the  agent  of  the  owner 
of  goods  for  their  transportation,  are  of  course  none  the  less 
liable,  as  common  carriers,  to  the  owner.  Thus,  if  a  person 
who  has  established  what  is  called  an  express  line,  for  the  con- 
veyance of  goods,  money,  &c.,  for  all  who  will  employ  him, 
has  a  contract  in  his  own  name  with  a  steamboat  company  for 
their  conveyance,  and  delivers  goods  or  money  on  board  to 
be  transported,  and  the  goods  or  money  are  lost  by  negligence, 
the  owner  may  sustain  an  action  against  the  company  ;  and 
it  makes  no  difference  whether  the  name  of  the  owner  is 
disclosed  by  the  agent,  to  the  company,  or  not.2 

§  99.  SECONDLY.  Since  it  appears,  that  neither  the  element 
on  which  goods  are  carried,  nor  the  nature,  magnitude,  and 
form  of  the  carriage  make  any  difference,  the  question  is, 


1  Muschamp  v.  Lancaster  and  Preston  Railway  Co.  8  M.  &  Welsh.  R. 
421. 

2  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  Dec. 
Term  of  Sup.  Court  of  U.  States,  1847  ;  and  see  the  case  in  the  Appx. 


CH.  IV.]   EXPRESS  LINE  —  NATURE  OF  THE  PROPERTY.    103 

whether  there  is  a  diversity  between  one  kind  of  goods  and 
another.  Persons  undoubtedly  may  be  common  carriers  of 
goods,  although  they  are  not  precisely  of  the  same  kind  and 
description  that  have  before  been  carried  by  them  for  hire  ; 
unless,  indeed,  they  be  such  that  the  person  delivering  them 
has  good  reason  to  suppose  that  they  are  not  within  the 
scope  of  the  agent's  authority  to  receive  and  transport. 
Thus,  in  our  commercial  cities,  it  is  every  day's  practice  for 
ship-masters  and  other  agents  to  receive  and  transport  new 
kinds  of  goods  which  were  before  unknown,  and  yet  it  was 
never,  and  never  could  reasonably,  be  questioned,  that  the 
ship-owner  was  equally  liable,  as  if  he  had  been  personally 
present  and  had  agreed  to  transport  the  new  article.  But 
the  owner  of  a  passage  boat  carrying  light  freight,  might  not 
be  answerable  for  a  cargo  of  coal  or  of  marble,  taken  on 
board  by  the  master,  although  he  had  been  in  the  habit  of 
carrying  small  pieces  or  specimens  of  either  for  hire.  In  the 
last  case,  the  party  who  contracted  with  the  agent,  would 
have  good  reason  for  presuming  that  the  agent  was  acting 
contrary  to  the  wishes  of  his  principal ;  and  if  such  were 
really  the  fact,  the  latter  would  probably  not  be  held  liable.1 
Where  there  is  a  meditated  concealment  of  the  nature  and 
value  of  the  goods  delivered  to  the  carrier,  (as  by  their  being 
locked  up  in  a  chest,)  and  they  are  of  extraordinary  value, 
and  that  fact  is  not  communicated  to  the  carrier,  and,  in 
consequence,  the  same  care  is  not  taken  of  the  goods  by  the 
carrier,  as  would  otherwise  have  been,  and  they  are  lost, 
whether  the  carrier  will  be  then  exonerated,  will  be  consid- 
ered in  another  place. 

§  100.  The  expression  generally  used,  is  "  a  common  car- 


1  See  the  opinion  of  Walworth,  Chancellor,  in  Sewall  u.  Allen,  6  Wend. 
(N.  Y.)  R.  346 ;  and  see  King  v.  Lenox,  19  Johns.  (N.  Y.)  R.  235.  To 
charge  a  person  as  common  carrier,  it  must  be  shown,  that  the  usage  of 
his  business  includes  the  goods  forwarded,  or  that  there  was  a  special 
contract  to  carry  them.  Tunnel  v.  Pettijohn,  2  Harring.  (Del.)  R.  48. 


104  LAW   OF   CAEEIERS.  [CH.  IV. 

rier  of  goods,"  but  a  carrier  of  money  may  be  as  much  bound 
as  a  common  carrier  of  goods,  if  to  carry  it  is  the  common 
usage  of  the  business  in  which  he  is  engaged,  and  if  it  be  his 
well  known  practice  to  take  charge  of  it  for  conveyance.1 
Thus,  in  the  case  of  Dwight  v.  Brewster,  in  Massachusetts,2 
it  is  affirmed,  that  the  proprietors  of  a  stage-coach  are  liable 
where  they  act  as  common  carriers,  and  the  profit  made  by 
the  carriage  of  bank  bills  is  within  the  scope  of  their  business, 
and  for  their  account. 

§  101.  In  Allen  v.  Sewall,  in  New  York,3  it  was  held, 
that,  on  the  principle  of  the  responsibility  of  common  car- 
riers, owners  of  a  steamboat  carrying  light  freight  and  par- 
cels for  hire,  as  well  as  passengers,  were  answerable  for  the 
loss  of  a  package  of  bank  bills  delivered  to  the  captain  for 
carriage  ;  and,  also,  that  instructions  to  the  captain  of  a  ves- 
sel, employed  in  the  carrying  business,  not  to  carry  money, 
does  not  excuse  the  owners,  unless  notice  of  such  instructions 
is  brought  home  to  the  shipper.  But  this  case  was  reversed, 
on  the  ground,  that  bills  were  not  "  goods,  wares,  and  mer- 
chandise "  within  the  meaning  of  the  charter  incorporating 
the  steamboat  company,  whose  agent  the  defendant  was  ; 
and  also  on  the  ground,  that  the  carriage  of  such  bills  was 
not  a  part  of  their  ordinary  business,  and  was  forbidden  by 
instructions  to  the  master.4 

1  Story  on  Bailm.  §  495  ;  Kemp.  v.  Coughtry,  11  Johns.  (N.  Y.)  R. 
109  ;  Sheldon  v.   Robinson,  7  N.  Hamp.  R.   157 ;  Emery  v.  Hersey, 
4  Greenl.  (Me.)  R.  407  ;  and  see  Harrington  v.  M'Shane,  2  Watts  (Penn.) 
R.  443;  Merwin  ».  Butler,  17  Conn.  R.  138;  New  Jersey  Steam  Nav. 
Co.  v.  Merchants  Bank,  Dec.  Term  Sup.  Co.  of  U.  S.  1847,  Appx.     See 
ante,  §  84. 

2  Dwight  v.  Brewster,  1  Pick.  (Mass.)  R.  50. 

3  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  327. 

4  6  Wend.  (N.  Y.)  R.  335.      "If  I  were  compelled,"  says  Mr.  J. 
Story,  "  to  choose  between  the  relative  authority  of  these  decisions,  upon 
the  ground  of  the  reasoning  contained  therein,  I  should  certainly  have 
deemed  that  of  the  Court  of  Errors  the  best  founded  in  the  principles  of 
law."     Citizens  Bank  v,  Nantucket  Steamboat  Company,  2  Story  (Cir. 


CH.  IV.]  COMMON   CARRIERS   OF  MONEY.  105 

§  102.  In  the  case  of  the  Citizens  Bank  v.  The  Nantucket 
Steamboat  Company,  (a  suit  in  admiralty,)  the  suit  was  in 
substance  brought  to  recover  from  that  company  a  sum  of 
money  in  bank  bills  and  accounts,  belonging  to  that  bank, 
which  was  intrusted  by  the  cashier  of  the  bank  to  the 
master  of  the  steamboat,  to  be  carried  from  the  island  of 
Nantucket  to  the  port  of  New  Bedford,  which  money  had 
been  lost,  and  never  duly  delivered  by  the  master.  The 
charter  incorporating  the  company,  granted  a  right  to  run  a 
steamboat  "  for  the  transportation  of  merchandise."  It  was 
held,  that  the  term  "  merchandise  "  does  not  apply  to  merely 
evidences  of  value,  such  as  notes,  bills,  checks,  policies  of 
insurance,  and  bills  of  lading,  but  only  to  articles  having  an 
intrinsic  value  in  bulk,  weight,  or  measure,  and  which  are 
bought  and  sold ;  and  that  in  order  to  render  the  company 
liable,  it  must  be  clearly  proved,  that  they  had  held  them- 
selves out  to  the  public  as  common  carriers  of  bank  bills  for 
hire,  and  that  they  had  authorized  the  master  to  contract  on 
their  account,  and  not  on  his  own,  for  the  carriage  thereof. 
That  the  onus  probandi  was  on  the  libellants  to  make  out  a 
prima  fade  case,  in  the  affirmative  ;  and  then  the  onus  pro- 
bandi of  disproving  this  inference  was  shifted  upon  the 
respondents.  That  the  knowledge  of  the  owners,  that  the 
master  carried  the  money  for  hire,  would  not  affect  them, 
unless  the  hire  was  on  their  account,  or  unless  the  master 
held  himself  out  as  their  agent  in  that  business,  within  the 
scope  of  the  usual  employment  and  service  of  the  steam- 
boat.1 


Co.)  R.  49.     Kent  seems  to  entertain  a  like  opinion.     2  Kent,  Comm. 
698,  note. 

1  Citizens  Bank  v.  Nantucket  Steamboat  Company,  2  Story  (Cir.  Co.) 
R.  16.  In  the  case  of  Sewall  v.  Allen,  in  the  Court  of  Errors  of  New 
York,  it  was  held,  it  has  been  shown,  that  a  steamboat  charter  authorizing 
the  company  to  transport  "  goods,  wares,  and  merchandises,"  did  not 
necessarily  include  the  carriage  of  bank  bills,  so  that,  unless  the  company 
actually  made  that  as  a  part  of  their  ordinary  business  of  common  carriers, 
they  were  not  liable  for  any  loss  thereof.  The  judgment  of  Mr.  J.  Story 


106  LAW   OF   CARRIERS.  [CH.  IV. 

§  103.  The  general  principles  of  law  upon  this  subject 
cannot  be  too  well  understood,  and  they  are  well  illustrated 
by  Mr.  J.  Story,  in  the  case  just  above  cited,  as  follows  : 
"  The  transportation  of  passengers  or  of  merchandise,  or  of 
both,  does  not  necessarily  imply,  that  the  owners  hold  them- 
selves out  as  common  carriers  of  money  or  bank  bills.  It  has 
never  been  imagined,  I  presume,  that  the  owners  of  a  ferry 
boat,  whose  ordinary  employment  is  merely  to  carry  passen- 
gers and  their  luggage,  would  be  liable  for  the  loss  of  money 
intrusted  for  carriage  to  the  boatmen  or  other  servants  of  the 
owners,  where  the  latter  had  no  knowledge  thereof,  and 
received  no  compensation  therefor.  In  like  manner  the 
owners  of  stage-coaches,  whose  ordinary  employment  is 
limited  to  the  transportation  of  passengers  and  their  luggage, 
would  not  be  liable  for  parcels  of  goods  or  merchandise 
intrusted  to  the  coachmen  employed  by  them  to  be  carried 
from  one  place  to  another  on  their  route,  where  the  owners 
receive  no  compensation  therefor,  and  did  not  hold  them- 
selves out  as  common  carriers  of  such  parcels.  A  fortiori, 


strongly  inclined  to  the  same  conclusion.  In  the  charter  of  the  Citizens 
Bank  it  appeared,  in  their  suit  against  the  Steamboat  Company,  the  word 
"goods  "  is  not  found.  If  it  were,  said  the  learned  Judge,  there  might 
be  more  difficulty  encountered  in  construing  it ;  as  it  was,  he  had  been 
unable  to  persuade  himself,  that  either  the  corporation  or  the  legislature, 
under  the  word  "merchandise,"  meant  to  include  bank  bills,  as  an  object 
of  regular  transportation  for  hire.  It  was  incumbent,  he  said,  upon  those 
who  assert  that  the  charter  includes  such  an  expanded  meaning,  to  show, 
by  some  clear  and  determinate  proofs,  that  the  company  have  positively 
adopted  and  acted  upon  that  meaning.  The  decree  of  the  District  Court, 
dismissing  the  libel  with  costs,  was  affirmed.  The  ground  of  defence  of 
the  company  was,  that,  in  point  of  fact,  although  the  transportation  of 
money  and  bank  bills  by  the  master  was  well  known  by  them,  yet  it  con- 
stituted no  part  of  their  own  business  or  employment;  that  they  never,  in 
fact,  were  common  carriers  of  money  and  bank  bills  ;  that  they  never  held 
themselves  out  to  the  public  as  such,  and  never  received  any  compensation 
therefor  ;  that  the  master,  in  receiving  and  transporting  money  and  bank 
bills,  acted  as  the  mere  private  agent  of  the  particular  parties,  and  not  as 
the  agent  of  the  company  or  by  their  authority. 


CH.  IV.]  COMMON   CARRIERS   OF  MONEY.  107 

they  would  not  be  liable  for  the  carriage  of  parcels  of  money 
or  bank  bills,  under  the  like  circumstances.  So,  if  money 
should  be  intrusted  to  a  common  wagoner,  not  authorized  to 
receive  it  by  the  ordinary  business  of  his  employers  and  own- 
ers, at  their  risk,  I  apprehend  that  they  would  not  be  liable 
for  the  loss  thereof  as  common  carriers,  any  more  than  they 
would  be  for  an  injury  done,  by  his  negligence,  to  a  passen- 
ger whom  he  had  casually  taken  up  on  the  road.  In  all  these 
cases,  the  nature  and  extent  of  the  employment  or  business, 
which  is  authorized  by  the  owners  on  their  own  account  and 
at  their  own  risk,  and  which  either  expressly  or  impliedly 
they  hold  themselves  out  as  undertaking,  furnishes  the  true 
limits  of  their  rights,  obligations,  duties,  and  liabilities.  The 
question,  therefore,  in  all  cases  of  this  sort  is,  what  are  the 
true  nature  and  extent  of  the  employment  and  business,  in 
which  the  owners  hold  themselves  out  to  the  public  as  en- 
gaged ?  They  may  undertake  to  be  common  carriers  of 
passengers,  and  of  goods  and  merchandise,  and  of  money  ; 
or,  they  may  limit  their  employment  and  business  to  the  car- 
riage of  any  one  or  more  of  these  particular  matters.  Our 
steamboats  are  ordinarily  employed,  I  believe,  in  the  carriage, 
not  merely  of  passengers,  but  of  goods  and  merchandise, 
including  specie,  on  freight ;  and  in  such  cases  the  owners 
will  incur  the  liabilities  of  common  carriers,  as  to  all  such 
matters  within  the  scope  of  their  employment  and  business. 
But  in  respect  to  the  carriage  of  bank  bills,  perhaps  very 
different  usages  do,  or  at  least  may,  prevail  in  different  routes, 
and  different  ports.  But,  at  all  events,  I  do  not  see  how  the 
Court  can  judicially  say,  that  steamboat  owners  are  either 
necessarily  or  ordinarily  to  be  deemed,  in  all  cases,  common 
carriers,  not  only  of  passengers,  but  of  goods  and  merchan- 
dise and  money  on  the  usual  voyages  and  routes  of  their 
steamboats  ;  but  the  nature  and  extent  of  the  employment 
and  business  thereof  must  be  established  as  a  matter  of  fact 
by  suitable  proofs  in  each  particular  case.  Such  proofs 
have,  therefore,  been  very  properly  resorted  to  upon  the 
present  occasion." 


108  LAW   OF   CARRIERS.  [CH.  IV. 

§  104.  If  by  the  usage  of  trade,  the  carrier  of  the  goods  is 
to  act  as  the  agent  for  the  sale  of  them  at  the  port  of  desti- 
nation, and  to  return  the  net  proceeds  to  the  shipper,  it  seems 
that  when  he  receives  the  money  arising  from  the  sale,  his 
liability  as  a  common  carrier  re-attaches,  and  he  is  answer- 
able, as  a  common  carrier,  for  the  loss  of  the  money  ;  and 
on  this  subject,  the  principles  advanced  in  the  preceding  sec- 
tion may  be  applicable.  In  Kemp  v.  Coughtry,1  the  master 
of  a  coasting  vessel  was  employed  to  carry  goods  from 
Albany  to  New  York,  and  the  usual  course  of  trade  was  for 
the  master  to  sell  the  goods  at  New  York,  without  charging 
any  thing  more  than  the  ordinary  freight,  and  to  account  to 
the  owner  of  the  goods  for  the  proceeds,  and  not  to  the  owner 
of  the  vessel.  The  master,  after  receiving  the  goods,  carried 
them  to  New  York,  and  sold  them  there,  and  brought  the 
money,  the  proceeds  of  the  sale,  on  board,  and  put  it  in  his 
trunk.  The  cabin,  though  locked,  in  the  absence  of  the 
master  and  crew  was  broken  open,  and  the  money  stolen. 
The  Court  held,  upon  this  state  of  facts,  that  the  owners 
were  responsible  for  the  loss,  and  treated  the  case  as  one 
arising  against  them  in  the  character  of  common  carriers. 
The  view  taken  by  the  Court  was,  that  the  money,  when  on 
board,  was  to  be  considered  the  same  as  a  return  cargo, 
purchased  with  the  proceeds  of  the  goods.2 


1  Kemp  v.  Coughtry,  11  Johns.  (N.  Y.)  R.  107. 

2  Upon  the  decision  in  this  case,  Story,  in  his  work  on  Bailments,  has 
thus  commented  :  "  Upon  the  actual  posture  of  the  facts  in  this  case,  the 
very  question  was,  whether  the  very  specific  money  on  board  was  to  be 
treated  as  cargo,  or  was  to  be  carried  back  for  hire  ;  and  whether  the 
master  was  bound  to  carry  back  the  specific  money  received  by  him,  or 
was  only  bound  to  pay  over  and  account  to  the  shipper  for  the  amount  and 
value  of  the  proceeds  in  any  money  whatsoever.     Now,  it  is  certainly  no 
part  of  the  duty  of  a  common  carrier  to  sell  goods  and  to  account  for  the 
proceeds.     If  he  sells,  it  is  not  as  a  carrier,  but  as  a.  factor.     The  owners 
of  the  vessel  may  be  liable  for  his  acts  as  factors,  if  the  course  of  trade 
makes  him  their  agent  in  the  business  of  selling.     But,  when  there  is  a 
right  delivery  of  the  goods  at  the  place  of  destination,  the  duty  of  the  car- 


CH.  IV.]  COMMON  CARRIERS   OF  MONEY.  109 

§  105.  In  Emery  v.  Hersey,  in  Maine,  'it  appeared,  that 
the  defendant's  sloop  was  employed  in  carrying  wood  and 
lumber,  on  freight,  from  the  river  Saco  ;  and  that  the  plain- 
tiff shipped  on  board  of  the  sloop,  on  freight,  a  certain  quan- 
tity of  lumber  to  be  sold  by  the  master,  and  the  net  proceeds 
to  be  paid  over  to  the  plaintiff.  It  appeared  also  by  the  testi- 
mony, that  the  usage  at  Saco  was,  when  lumber  is  shipped 
on  freight,  for  the  master  to  sell  it,  and  bring  home  the 
money  and  pay  it  over  to  the  shipper.  It  was  held,  that 
where,  in  the  usual  course  of  business,  goods  shipped  on 
freight  are  consigned  to  the  master  for  sales  and  returns, 
the  owner  of  the  vessel  is  liable,  as  well  for  the  payment  of 
the  proceeds  to  the  shipper,  as  for  the  safe  transportation  of 
the  goods  ;  and  the  Court  referred  to  the  decision  in  the  case 
of  Kemp  v.  Coughtry  as  an  authority  directly  in  point.1  This 
case,  with  the  preceding  one,  was  considered  in  the  case  of 
Harrington  v.  M'Shane,  in  the  Supreme  Court  of  Pennsyl- 
vania ;  and  it  was  held  in  this  case,  that,  where  the  owners 
of  a  steamboat  took  produce  for  a  certain  freight  to  be  car- 
ried from  Pittsburg  to  Louisville,  and  to  be  sold  by  them, 
and  were  bringing  back,  in  the  same  vessel,  the  money  which 
they  obtained  on  the  sale  of  the  produce,  when  the  vessel  and 
money  were  accidentally  consumed  by  fire,  the  owners,  under 
the  usage  of  trade  on  the  western  waters,  were  acting  as 


rier,  as  such,  would  seem  to  cease  ;  and  the  duty  of  factor  to  commence. 
If  the  specific  money  received,  or  any  other  goods  bought  with  it,  are  to 
be  returned  in  the  same  vessel  to  the  original  port,  and  the  freight  paid 
contemplates  that  course  of  trade,  as  soon  as  the  goods  or  money  are  put 
on  board  for  the  purpose  of  the  return  carriage,  the  liability  of  the  carrier 
certainly  re-attaches.  But  the  evidence  in  the  case  went  to  show,  not  that 
there  was  to  be  any  such  return  of  the  particular  money  or  goods  in  the 
vessel,  but  merely,  that  there  was  a  liability  of  the  master  to  account  for 
the  proceeds  to  the  owners  of  the  goods,  and  not  to  the  owner  of  the  vessel. 
Perhaps  the  application  of  the  law  to  the  facts,  rather  than  the  law  itself, 
as  laid  down  in  the  case,  would  deserve  farther  consideration."  See  Allen 
v.  Sewall,  2  Wend.  (N.  Y.)  R.  227  ;  S.  C.  6  Wend.  R.  363. 
1  Emery  v.  Hersey,  4  Greenl.  (Me.)  R.  407. 
10 


110  LAW   OP  CARRIERS.  [CH.  IT. 

common  carriers  in  going,  as  factors  in  selling  the  produce, 
and  as  common  carriers  in  bringing  back  the  money  ;  and 
that  they  were  liable  for  the  loss  of  the  money,  notwithstand- 
ing the  accident.1 

§  106.  But  the  usage  in  such  cases,  like  all  commercial 
usages,  must  be  clearly  proved.  The  captain  of  a  steam- 
boat, who  was  part  owner,  took  flour  on  freight,  and  under- 
took to  sell  it ;  and  after  selling  it,  failed  to  account  for  the 
proceeds  to  the  freighter;  and  the  owners,  it  was  held,  were 
not  bound  by  his  contract,  in  the  absence  of  proof,  that  he 
had  express  authority  from  them,  or  implied  authority  from 
the  usage  of  trade,  to  act  as  factor,  and  the  Court  refer  to 
the  decision  in  the  case  of  Kemp  v.  Coughtry,  in  New  York, 
as  being  founded  on  the  usage  of  trade  between  New  York 
and  Albany.2  If  a  common  carrier  by  whom  goods  are  sent 
to  A,  sells  them  to  B,  such  sale  vests  no  title  ;  and,  to  take 
a  case  out  of  the  operation  of  this  principle,  on  the  ground 
of  the  usage  of  trade,  the  usage  must  be  well  established, 
certain,  uniform,  and  reasonable.  But  if  the  owner  of  a 
horse  send  it  to  a  repository  of  sale,  it  must  be  intended  as 
an  implied  authority  to  sell  it ;  or,  if  one  send  goods  to  an 
auction  room,  it  cannot  be  supposed  that  he  sent  them  there 
merely  for  safe  custody.  So  the  principle  is  not  denied,  that 
if  a  person  sends,  by  a  carrier,  merchandise,  or  produce,  to  a 
place,  where  it  clearly  appears  to  be  the  ordinary  business 
of  the  carrier  to  sell,  it  must  be  intended  that  the  commodity 
was  sent  thither  for  the  purpose  of  sale. 

§  107.  It  has  been  a  matter  of  considerable  discussion, 
whether  the  usual  bag-g-age  taken  with  them  by  persons  in 
travelling  in  stage-coaches,  rail-cars,  steamboats,  &c.  are  to 
be  regarded  as  in  the  custody  of  the  proprietors  of  those 
conveyances,  in  the  character  of  common  carriers.  It  has 

1  Harrington  el  al.  v.  M'Shane,  2  Watts  (Penn.)  R.  443. 

2  Taylor  v.  Wells,  3  Watts  (Penn.)  R.  65. 


CH.  IV.]  BAGGAGE  OF  PASSENGERS.  Ill 

ever  been  agreed  on  all  hands,  that  the  proprietors  do  not 
warrant,  in  that  character,  the  safety  of  the  persons  of  the 
passengers,  though,  as  will  be  shown  in  a  separate  chapter, 
they  are  responsible  for  due  care  in  respect  to  that.  That  the 
proprietors  were  not  responsible  as  common  carriers  for  the 
baggage  of  the  passengers,  unless  a  distinct  price  was  paid 
for  it,  was  twice  held  by  Lord  Holt ;  and  he  considered  it 
not  usual  to  charge  for  baggage,  unless  it  exceeded  a  certain 
amount  in  weight  or  quantity.1  But,  inasmuch  as  the  custody 
of  the  baggage  is  an  accessary  to  the  principal  contract,2 
it  is  considered,  that  coach  proprietors,  &c.  should  be  placed, 
in  respect  to  baggage,  upon  the  ordinary  footing  of  common 
carriers. 

§  108.  So  the  law  is  now  considered  to  be  in  England.8 
Thus,  in  a  modern  case,  in  an  action  against  a  coach  pro- 
prietor, to  recover  damages  for  the  loss  of  a  trunk ;  the 
plaintiff,  it  appeared,  being  about  to  travel  from  Bath  to 
Truro,  took  a  place  at  the  defendant's  coach  office.  At 
Taunton,  when  the  coach  was  changed,  for  the  convenience 
of  the  proprietor,  the  plaintff  was  assured  by  the  coachman, 
that  the  trunk  had  been  safely  stowed  on  the  top  of  the 
coach,  the  second  vehicle  being  deficient  in  the  accomraoda- 


1  Middleton  v.  Fowler,  1  Salk.  R.  282  ;  Upshaire  v.  Aidee,  Comyn,R. 
25  ;  and  see  Jeremy  on  Carr.  11,  13. 

2  It  is  said  in  the  Civil  Law,  that,  by  a  delivery  of  the  principal  thing, 
that  which  is  accessorial  does  not  pass ;  as  if  a  slave,  with  his  clothing 
on,  is  deposited  ;  or  a  horse  with  his  halter  ;  neither  the  clothes  nor  the 
halter  are  deposited.     But  this  doctrine,  if  true  at  all  in  our  law,  must  be 
received  with  many  qualifications.     It  must  always  depend  upon  the  intent 
of  the  parties.     Story  on  fiailm.  §  54.     According  to  this  rule,  the  contract 
to  carry  the  baggage  of  a  passenger  by  usually  receiving  baggage,  subjects 
the  proprietor  to  the  responsibility  of  a  common  carrier  of  goods  in  general ; 
as  it  is  at  least  as  much  intended  by  the  passenger,  that  his  trunk  contain- 
ing his  necessary  baggage,  should  be  safely  transported,  as  it  is  intended 
by  the  shipper  of  a  barrel  of  flour,  that  that  should  be. 

3  1  Bell,  Comm.  467,468. 


112  LAW   OF   CARRIERS.  [CH.  IV. 

tion  of  a  boot,  which  the  first  afforded.  On  arrival  at  the 
place  .of  destination,  the  plaintiff  missed  his  trunk,  which 
contained  apparel  and  jewels ;  and  it  was  held,  that  the 
defendant  was  liable  to  make  compensation  to  the  owner, 
though  no  disclosure  was  made  of  the  value  of  the  contents 
of  the  trunk,  and  though  there  was  a  notice  in  the  defend- 
ant's office  limiting  his  responsibility  to  five  pounds,  in  the 
absence  of  such  disclosure  ;  which  notice  the  owner  of  the 
trunk,  having  been  in  the  office,  had  an  opportunity  of 
seeing.1 

§  109.  In  Peixotti  v.  M'Laughlin.  in  the  Court  of  Appeals 
of  South  Carolina,  in  1847,2  in  which  it  was  held,  that  a  stage 
contractor  is  a  common  carrier,  and  liable  as  such  for  all  loss 
of  baggage,  Richardson,  J.,  who  delivered  the  opinion  of  the 
Court,  observed  :  —  "  The  strict  liability  of  common  carriers 
by  the  Common  Law,  has  been  fully  recognized  in  this  State, 
in  many  cases,  and  the  general  doctrine  is  established.  The 
liability  of  ferrymen  as  common  carriers,  so  often  adjudged, 
is  very  analogous  to  the  present  case.  The  ferryman  takes 
over  a  man  —  say  for  ten  cents  ;  but  the  man  carries  a  pack, 
there  can  be  no  doubt  the  ferryman  would  be  liable  for  the 
loss  of  the  pack,  although  he  takes  no  toll  separately  for  the 
packs.  So,  if  the  contents  of  a  wagon  or  of  the  load  upon 
a  horse  be  lost ;  because,  all  must  be  necessarily  placed  in 
the  custody  of  the  ferrymen.  The  stage  contractor,  the 
ferryman,  the  boatman,  railroad  companies,  and  wagoners, 
are  alike  carriers  over  the  public  highway,  and  stand  all  in 
the  same  parity  of  reasoning,  i.  e.,  they  come  within  the 
same  necessary  and  strict  legal  policy  of  guarding  against 
robberies  or  cheats  by  those,  who,  having  the  custody,  are 
enabled  to  do  wrong  secretly." 


1  Brook  ».  Pickwicke,  4  Bing.  R.  218.     As  to  the  effect  of  notices  in 
limiting  carrier's  responsibility,  it  will  be  fully  considered  post,  Chapter 
VII.     See  Cairns  v.  Robins,  8  M.  &  Welsb.  R.  258. 

2  Peixotti  v.  M'Laughlin,  1  Strob.  (S.  C.)  R.  468. 


CH.  IV.]  BAGGAGE   OP   PASSENGEKS.  113 

§  110.  It  was  formerly  held,  say  the  Supreme  Court  of 
New  York,  that  the  owner  of  the  vehicle  or  boat  was  not 
answerable  as  a  carrier  for  the  luggage  of  the  passenger, 
unless  a  distinct  price  was  paid  for  it ;  but  it  is  now  held, 
that  the  carrying  of  the  baggage  is  included  in  the  princi- 
pal contract,  in  relation  to  the  passenger  ;  and  the  carrier  is 
answerable  for  the  loss  of  the  property,  although  there  was 
no  separate  agreement  concerning  it.  A  contract  to  carry 
the  ordinary  baggage  of  the  passenger  is  implied  from  the 
usual  course  of  the  business ;  and  the  price  paid  for  fare  is 
considered  as  including  a  compensation  for  carrying  the 
freight.1  The  practice  of  requiring  freight  for  baggage  if 
over  a  certain  weight,  well  illustrates  that  baggage  under 
that  weight  is  fully  paid  for,  by  the  personal  passage  money 
of  the  traveller.2  It  was  affirmed  by  Chancellor  Walworth, 
in  Powell  v.  Myers,  in  the  Court  of  Errors  of  New  York,3 
that  the  salutary  rule  of  holding  the  owners  of  steamboats, 
railroads,  canal-boats,  stage-coaches,  &c.  liable  for  losses, 
other  than  those  arising  from  public  enemies  or  inevitable 
accidents,  and  which  is  so  essential  to  the  preservation  of 
the  baggage  of  the  otherwise  unprotected  traveller  against 
the  negligence  of  the  carriers,  or  the  frauds  of  their  ser- 
vants, should  not  be  impaired  by  any  decision  of  that  Court ; 
and  the  opinion  of  the  Court  of  Errors  was,  that  such  owners 
were  liable  as  common  carriers,  for  the  safety  of  baggage, 
until  its  delivery  to  the  owner.  The  doctrine  is  laid  down 
with  great  rigor  in  Ohio,  in  which  State  it  has  beeii  held, 


1  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  R.  586  ;  Bennett  v.  Button,  10 
N.  Hamp.  R.  481  ;  Logan  v.  Ponchartrain  Railroad  Co.  11  Rob.  (Louis.) 
R.  24. 

2  Peixotti  v.  McLaughlin,  1  Strob.  (S.  C.)  R.  468. 

3  Powell  v.  Myers,  26  Wend.  (N.  Y.)  R.  591.     See  also  Hollister  v. 
Nowlen,  19  Ib.  234  ;  Cole  v.  Goodwin,  Ib.  251,  and  the  cases  therein 
referred  to  by  Justices    Bronson  and  Cowen;  Orange  County  Bank  0. 
Brown,  21  Ib.  254 ;  Camden   and  Amboy  Railroad  Co.  v.  Burke,  13  Ib. 
611. 

10* 


114  LAW   OF   CARRIERS.  [CH.  IV. 

that  the  proprietors  of  stage-coaches  are  common  carriers, 
and  that  their  liabilities  cannot  be  limited  even  by  actual 
notice  to  a  traveller,  that  his  baggage  is  at  his  own  risk.1 
In  Pennsylvania,  in  a  suit  against  stage  owners  for  loss  of 
baggage,  it  was  held,  that  payment  of  the  fare  need  not  be 
expressly  proved  ;  for  it  may  be  inferred  without  violent 
implication,  inasmuch  as  the  payment  of  fare  is  seldom  or 
ever  neglected.  But  even  if  the  fare  is  not  paid,  the  pas- 
senger is  liable  to  pay  it ;  and  this  obliges  the  owners  of  a 
stage-coach  to  the  exercise  of  diligence.2 

§  111.  The  fact  that  stage  contractors,  &c.  do  not  enter 
the  baggage  upon  the  way-bill,  does  not  alter  their  liability 
as  common  carriers  for  the  loss  of  such  baggage,  as  the 
way-bill  is  altogether  ex  parte,  and  is  not,  like  a  bill  of  lading, 
a  contract.3 

§  112.  Although  hackney  coachmen  are  not  deemed  com- 
mon carriers  of  goods  or  merchandise,  their  employment  being 
more  for  the  conveyance  of  passengers  than  for  the  carriage 
of  goods,4  yet,  as  to  the  baggage  of  the  passengers  they 
carry,  and  hold  themselves  out  to  carry  with  their  baggage, 
there  is  as  much  reason  that  they  should  be  responsible  in  the 
character  of  common  carriers,  in  respect  to  such  baggage,  as 
the  owners  of  stage-coaches,  &c.  It  is  ordinarily  the  case, 
that  hackney  coachmen  are  accustomed  to  carry  the  baggage 
of  passengers,  although  they  receive  no  specific  compensation 
therefor,  but  simply  receive  the  fare  for  the  transportation  of 
the  traveller  ;  yet,  like  common  carriers,  they  are  responsible 
for  the  safety  of  such  baggage  ;  since  it  constitutes  a  part  of 


1  Jones  v.  Voorhees,  6  Ohio  R.  358. 

a  McGill  v.  Rowland,  3  Barr.  (Penn.)  R.  451  ;  and  see  also  Bingham 
v.  Rogers,  6  Watts  &  S.  (Penn.)  R.  495  ;  Whitesell  ».  Crane,  8  Ibid. 
369. 

3  Peixotti  v.  McLaughlin,  1  Strob.  (S.  C.)  R.  468. 

4  Jeremy  on  Carr.  13,  14  ;  Upshaire  v.  Aidee,  Comyn,  R.  25. 


CH.   IV.]  BAGGAGE   OF  PASSENGERS.  115 

the  service  for  which  the  fare  is  paid,  and  the  passengers  are 
thereby  induced  to  travel  in  the  coach,  and  the  custody  of 
the  baggage  may  be  deemed,  as  in  the  case  of  an  innkeeper, 
an  accessary  to  the  principal  contract.1  Still  it  is  a  question 
of  fact,  whether  a  hackney  coachman  or  a  cabman,  professes 
to  carry  both  passengers  and  baggage,  and  if  it  so  appear,  he 
is  clothed  with  the  obligations  and  responsibilities  of  a  com- 
mon carrier  of  goods  for  hire.2 

§  113.  Coach  proprietors,  &c.  are  held  liable  as  common 
carriers  for  the  baggage  of  passengers,  even  if  the  owner  of 
the  baggage  is  present,  or  sends  his  servant  to  look  after  the 
baggage  ;  unless  there  be  fraud  on  the  part  of  the  owner. 
In  Robinson  v.  Dunmore,  Chambre,  J.,  said  :  —  "It  has 
been  determined,  that  if  a  man  travel  in  a  stage-coach,  and 
lake  his  portmanteau  with  him,  though  he  has  an  eye  on  the 
portmanteau,  yet  the  carrier  is  not  absolved  from  his  respon- 
sibility.3 But  the  law  is  equally  rigid,  that  the  baggage 
should  be  fairly  in  the  custody  of  the  carrier ;  for  where  an 
action  was  brought  against  a  railroad  company,  for  the  loss 
of  an  overcoat  belonging  to  a  passenger,  and  it  appeared  that 
the  coat  was  not  delivered  to  the  defendants,  but  that  the 
passenger  having  placed  it  on  the  seat  of  the  car  in  which  he 
sat,  forgot  to  take  it  with  him  when  he  left,  and  that  it  was 
afterwards  stolen  ;  the  defendants  were  not  held  liable.4 

§  114.  The  arrival,  with  the  baggage  in  safety,  at  the 
place  of  destination,  will  not  discharge  the  carrier  until  its 
delivery  to  the  owner  ;  although,  unless  demanded  in  a  rea- 
sonable time,  the  liability  of  the  carrier,  in  his  strict  character 

1  Story  on  Bailm.  §  498. 

2  Ross  v.  Hill,  15  Law  Jour.  N.  S.  (C.  P.)  182,  cited  in  Addison  on 
Contr.  804. 

3  Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  47  ;  and  see  Cole  v.  Good- 
win, 19  Wend.  (N.  Y.)  R.  251. 

4  Tower  v.  Utica  and  Schenectady  Railroad  Co.  7  Hill  (N.  Y.)  R.  47. 
And  see  post,  §  140. 


116  LAW   OP   CARRIERS.  [CH.  IV. 

of  a  common  carrier,  will  not  continue.1  No  passenger  is 
required,  however,  to  expose  his  person  in  a  crowd,  or  en- 
danger his  safety  in  the  attempt  to  designate  and  claim  his 
baggage  ;  but  if  the  delivery  is  made  in  conformity  to  a 
usage,  so  well  established  and  notorious,  that  it  is  to  be  pre- 
sumed that  the  owner  had  knowledge  of  it,  the  carrier  will 
be  discharged.2 

§  115.  The  implied  undertaking  of  the  proprietors  of  stage- 
coaches, railroads,  and  steamboats,  to  carry  in  safety  the  bag- 
gage of  passengers,  is  not  unlimited,  and  cannot  be  extended 
beyond  ordinary  baggage,  or  such  baggage  as  a  traveller 
usually  carries  with  him  for  his  personal  convenience.8  It  is 
never  admitted  to  include  merchandise;  and  it  has  been 
expressly  held,  that  although  the  owners  of  steamboats  are 
liable,  as  common  carriers,  for  the  baggage  of  the  passen- 
gers, that  is,  for  such  articles  of  necessity  and  personal  con- 
venience as  are  usually  carried  by  passengers,  they  were  not 
liable  for  the  loss  of  a  trunk  containing  valuable  merchandise, 
and  nothing  else  ;  which  trunk  was  lost  after  being  taken  on 
board  the  steamboat,  and  deposited  with  the  ordinary  bag- 
gage.4 Neither  does  the  implied  undertaking  include  a  large 
sum  of  money.  In  a  case  very  fully  argued,  it  has  been 
expressly  decided,  that  where  the  baggage  consists  of  an 
ordinary  travelling  trunk,  in  which  there  was  a  large  sum  of 
money  ($11,250,)  such  money  is  not  considered  as  included 
in  the  term  baggage,  so  as  to  render  the  carrier  responsible 


1  Powell  v.  Myers,  26  Wend.  (N.  Y.)  R.  591  ;  Hollister  v.  Nowlen, 
19  Wend.  (N.  Y.)  R.  234.    Interference  by  the  owner,  by  giving  directions 
as  to  the  care  of  the  property,  the  transportation  of  which  is  interrupted  by 
the  closing  of  a  river,  is  not  of  itself  an  acceptance  of  the  property  by  the 
owner,  but  merely  evidence  of  it  to  be  submitted  to  the  jury,  with  the 
other  circumstances  of  the  case.     Bowman  v.  Teall,  23  Wend.  (N.  Y.) 
R.  306. 

2  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  R.  251. 

3  Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  R.  586. 

4  Pardee  ».  Drew,  25  Wend.  (N.  Y.)  R.  459. 


CH.  IV.]  BAGGAGE   OF   PASSENGERS.  117 

for  it.1  It  was  suggested  in  this  case,  that  money  in  a  trunk 
to  pay  travelling  expenses  might  be  included  ;  but  that  was 
doubted,  as  men  usually  carry  money  to  pay  travelling  ex- 
penses about  their  persons,  and  not  in  their  trunks  or  boxes  ; 
and  no  contract  can  be  implied  beyond  such  things  as  are 
usually  carried  as  baggage.  An  agreement  to  carry  ordinary 
baggage  may  well  be  implied  from  the  usual  course  of  busi- 
ness ;  but  the  implication  cannot  be  at  all  extended  beyond 
such  things  as  the  traveller  usually  has  with  him  as  a  part  of 
his  baggage.  All  articles  which  it  is  usual  for  persons  trav- 
elling to  carry  with  them,  whether  from  necessity  or  for  con- 
venience, or  amusement,  (such  as  a  gun,  or  fishing-  tackle,) 
fall  within  the  term  baggage.2  So,  likewise,  does  money,  not 
exceeding  a  reasonable  amount ;  3  and  a  watch  has  been  held 
to  be  a  part  of  a  traveller's  baggage,  and  his  trunk  a  proper 
place  in  which  to  carry  it.* 

§  116.  The  Supreme  Court  of  Pennsylvania  have  consid- 
ered, that  it  is  not  obvious  in  what  manner  the  Court  can 
restrict  the  quantity  or  value  of  the  articles  that  may  be 
deemed  proper  or  useful  for  the  ordinary  purposes  of  travel- 
ling ;  because  in  the  nature  of  things,  it  is  susceptible  of  no 
precise  or  definite  rule  ;  and  when  there  is  an  attempt  to 
abuse  the  privilege,  a  Court  must  rely  upon  the  intelligence 
and  integrity  of  the  jury  to  apply  the  proper  corrective. 
The  defendants,  in  this  case,  requested  the  Court  to  charge 
the  jury,  that  they,  (the  defendants)  having  had  no  notice 
that  the  trunks  in  question  contained  jeivelry,  or  other  articles 
of  greater  value  than  ordinary  wearing  apparel,  they  were 

1  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  R.  85  ;  and  see 
Gibbon  v.  Paynter,  4  Burr.  R.  2298  ;  Batson  v.  Donavan,  4  B.  &  Aid. 
340. 

2  Orange  County  Bank  v.  Brown,  ub.  step. 

3  Weed  v.  Schenectady  and  Saratoga  Railroad  Co.  19  Wend.  (N.  Y.) 
R.  534  ;  Cole  v.  Goodwin,  ub.  sup. 

4  Jones  v.  Voorhees,  6  Ohio  R.  358.     See  Tudor  v.  Boston  &  Maine 
Railroad  Co.  13  Shep.  (Me.)  R.  458  ;  and  post,  §  475,  et  seq. 


118  LAW   OF   CARRIERS.  [CH.  IV. 

not  liable  for  such  articles  of  jewelry  ;  but  the  Court  refused, 
and  the  jury  found  for  the  plaintiff;  and  judgment  was 
affirmed  in  error.1 

§  117.  The  Common  Law  knew  no  distinction,  in  respect 
to  the  liability  of  a  common  carrier,  between  a  letter  and  any 
other  tiling;  and  a  private  postmaster  was  precisely  in  the 
situation  of  any  other  carrier.2  But  the  statute  of  12  Charles 
II.,  having  established  a  general  post-office,  and  taken  away 
the  liberty  of  forwarding  letters  by  private  post,3  it  was 
thought,  that  an  alteration  had  been  made  in  the  obligation 
of  the  postmaster-general ;  and,  in  the  case  of  Lane  v.  Cot- 
ton,4 three  Judges  determined,  against  the  well  supported 
opinion  of  Chief  Justice  Holt,  that  the  postmaster  was  not 
answerable  for  the  loss  of  a  letter  with  exchequer  bills  in  it ; 
and  that  the  postmasters  enter  into  no  contract  with  individ- 
uals, and  receive  no  hire,  like  common  carriers,  in  proportion 
to  the  risk  and  value  of  the  letters  under  their  charge,  but 
only  a  general  compensation  from  government.  The  same 
question  was  at  a  later  period  discussed  in  a  case  brought 
against  the  postmaster-general,  to  recover  the  amount  of  a 
bank  note  stolen  by  one  of  the  sorters  of  letters,  when  the 
Court  adhered  to  the  doctrine  of  the  three  Judges  in  the 
above  named  case,  against  the  opinion  of  Lord  Holt.5  Lord 
Mansfield,  in  this  case,  held,  that  there  was  no  analogy 
between  the  postmaster  and  a  common  carrier  ;  because,  the 
postmaster  has  no  hire,  enters  into  no  contract,  and  carries 
on  no  merchandise  or  commerce  ;  the  post-office  is  a  branch 
of  revenue,  and  a  branch  of  police,  created  by  act  of  parlia- 
ment ;  as  a  branch  of  revenue,  there  are  great  receipts,  but 
there  is  likewise  a  great  surplus  of  benefit  and  advantage  to 


1  McGill  v.  Rowland,  3  Barr.  (Penn.)  R.  451. 

2  Jones  on  Bailm.  109,  110. 

3  Carth.  R.  487  ;  12  Mod.  R.  482. 

4  Lane  v.  Cotton,  1  Ld.  Raym.  R.  546. 

5  Whitfield  v.  De  Spencer,  Cowp.  R.  754. 


CH.  IV.]         POSTMASTERS   AND  MAIL    CONTRACTORS.  119 

the  public,  arising  from  the  fund  ;  as  a  branch  of  police,  it 
puts  the  whole  correspondence  of  the  country  (for  the  ex- 
ceptions are  very  trifling)  under  government,  and  intrusts  the 
management  and  direction  of  it  to  the  crown. 

§  118.  In  the  United  States,  it  is  also  held,  that  the  post- 
masters are  merely  public  officers  appointed  by,  and  respon- 
sible to,  the  government ;  that  the  contracts  made  by  them 
officially  are  public  contracts  binding  on  the  government,  but 
not  on  themselves  personally.1 

§  119.  But  a  postmaster  is  considered  to  be  liable  in  a 
private  action  for  damages  arising  from  misfeasance,  or  for 
negligence,  or  want  of  ordinary  diligence  in  his  office,  in  not 
safely  transmitting  a  letter,  although  not  liable,  like  a  com- 
mon carrier,  for  the  safe  conveyance  of  a  letter  from  his  post- 
office  to  another.  His  liability,  it  was  considered,  is  more 
like  that  of  a  warehouseman  ;  that  is,  he  is  liable  for  no  other 
losses  or  injuries  than  those  arising  from  ordinary  neglect  on 
his  part.  Therefore,  where  a  letter,  which  contained  bank 
notes,  and  which  was  mailed  at  a  town  in  Ohio,  and  directed 
to  the  plaintiff  at  New  Berlin,  in  Pennsylvania  ;  from  which, 
by  regular  course  of  mail,  it  was  to  be  sent  to  the  distributing 
office  in  Chambersburg ;  and  the  evidence  went  to  show, 
that  the  letter  had  been  purloined  by  an  assistant  in  the  post- 
office  at  Pittsburg  ;  it  was  held,  that  the  postmaster  at  Pitts- 
burg  was  not  liable  for  the  loss.2 

§  120.  A  deputy  postmaster,  or  clerk  in  the  office,  is  an- 
swerable in  a  private  suit  for  misconduct  or  negligence  ;  as 


1  Dunlop  v.  Munroe,  7  Cranch  (U.  S.)  R.  242.     A  postmaster  is  not 
liable  for  money  contained  in  a  letter  delivered  at  the  post-office  in  his 
absence,  and  afterwards  lost.     Bolan  v.  Williamson,  2  Bay  (S.  C.)  R. 
551. 

2  Schroyer  t>.  Lynch,  8  Watts  (Penn.)  R.  453. 


120  LAW   OF   CARRIEKS.  [CH.  IV. 

for  wrongfully  detaining  a  letter  an  unreasonable  time.1  But 
the  assistants  of  deputy  postmasters  do  not  stand  in  the  situ- 
ation of  servants  to  them  ;  and,  therefore,  a  deputy  post- 
master is  not  liable  for  the  act  of  his  assistant  in  purloining 
money ;  unless,  perhaps,  he  retains  him,  after  having  found 
him  to  be  unfaithful.2  The  deputy  is  not,  therefore,  liable 
for  the  consequences  of  any  losses,  delinquencies,  or  embez- 
zlements of  his  official  assistants,  if  he  exercises  due  care  and 
reasonable  superintendence  over  their  official  conduct,  and 
he  has  no  reason  to  suspect  them  of  any  negligence  or 
malconduct.3 

§  121.  It  has  been  held,  in  Ohio,  that  a  mail  contractor  is 
not  liable  to  the  owner  of  a  letter  containing  money,  trans- 
mitted by  mail,  and  lost  by  the  carelessness  of  the  contract- 
or's agents  in  carrying  the  mail ;  and  the  reasons  assigned 
by  the  Court  were,  that  a  mail  carrier  has  no  contract  with 
those  who  transmit  articles  by  the  public  mail,  and  he  receives 
no  fee  or  reward  from  them ;  that  his  contract  is  with  the 
government  of  the  United  States,  for  the  performance  of  acts 
in  the  execution  of  a  public  function  ;  he  is  remunerated  by 
the  government ;  and  the  duty  he  takes  upon  himself  by  the 
contract,  he  is  sworn  to  perform.  So  far  then,  as  the  trans- 
mission of  the  mail  is  concerned,  a  mail  contractor  is  a  public 
agent,  and,  as  such,  only  responsible.4 

§  122.  There  is  another  kind  of  property,  for  the  carriage 
of  which  persons  do  not  become  liable  as  common  carriers. 
In  respect  to  the  carriage  of  slaves,  the  question  has  more 
than  once  arisen,  how  far  the  carrier  of  them  incurs  the 
Common  Law  responsibility.  In  Boyce  v.  Anderson,  in  the 


1  Rowning  v.  Goodchild,  3  Wils.  R.  443 ;  Stork  v.  Harris,  5  Buir.  R. 
2709. 

2  Schroyer  ».  Lynch,  ub.  sup. 

3  Story  on  Bailm.  $  463. 

4  Conwell  v.  Voorhees,  13  Ohio  R.  523. 


CH.  IV.]  CARRIAGE   OP    SLAVES.  121 

Supreme  Court  of  the  United  States,1  it  was  held,  that  the 
law  regulating  the  responsibility  of  common  carriers,  does 
not  apply  to  the  case  of  carrying  intelligent  beings,  such  as 
negroes.  The  carrier  has  not,  and  cannot  have,  the  same 
absolute  control  over  them,  that  he  has  over  inanimate  mat- 
ter ;  and  in  the  nature  of  things,  and  in  their  character,  such 
human  beings  are  passengers.  Therefore  the  responsibility 
of  the  carrier  should  be  measured  by  the  law  which  is  appli- 
cable to  passengers,  rather  than  that  which  is  applicable  to 
the  carriage  of  common  goods.  In  South  Carolina,  it  has 
also  been  held,  that  there  is  a  manifest  distinction  between 
the  liability  of  the  carrier  with  respect  to  the  transportation 
of  a  slave  and  a  bale  of  goods  ;  and  that  the  strictness  of  the 
Common  Law  rule  of  liability,  is  not,  from  the  nature  of  the 
subject,  applicable  to  the  carriage  of  the  former.2  The 
Supreme  Court  of  Alabama  have  held,  on  the  authority  of 
the  above  case  of  Boyce  v.  Anderson,  that  the  strict  rule  of 
the  Common  Law,  in  respect  to  the  responsibility  of  common 
carriers,  does  not  apply  to  the  conveyance  of  slaves  as  pas- 
sengers, by  a  carrier  for  hire ;  and  that  for  such  passengers  a 
carrier  is  liable  only  for  ordinary  neglect.  But  if  slaves  have 
paid  no  hire  for  their  passage,  the  carrier  would  only  be 
responsible  in  the  case  of  gross  neglect ;  in  other  words,  a 
less  degree  of  negligence  makes  a  carrier  liable  to  a  passen- 
ger who  has,  or  is  bound  to  pay  his  hire,  than  is  required  to 
make  him  responsible  to  one,  from  whom  he  is  to  receive  no 
reward.3 


1  Boyce  v.  Anderson,  2  Peters  (U.  S.)  R.  150 ;  and  see  Stokes  v.  Sal- 
tonstall,  13  Ib.  181. 

2  Clark  v.  McDonald,  4  M'Cord  (S.  C.)  R.  223. 

3  Williams  v.  Hitchcock,  4  Port.  (Ala.)  R.  234.     The  owners  of  a  boat 
are  not  liable  for  the  loss  of  a  slave,  employed  as  one  of  the  boat  hands, 
unless  the  loss  was  occasioned  by  the  wilful  misconduct  or  culpable  negli- 
gence of  the  captain.     McDaniel  v.  Emanuel,  2  Rich.  (S.  C.)  R.  455. 
Where  a  slave  was  hired  to  work  on  a  railroad,  and  the  slave,  with  the 
knowledge  of  the  conductor,  went  on  the  cars  and  was  carried  beyond  the 
place  at  which  his  services  were  that  day  required,  and  in  jumping  from 

11 


122 


LAW   OF   CARRIERS. 


[CH.  IV. 


the  cars  while  in  motion,  was  killed  ;  it  was  held,  that  the  Company  were 
liable  to  the  owner  of  the  slave  for  the  loss.  Duncan  v.  Railroad  Com- 
pany, '2  Rich.  (S.  C.)  R.  613.  It  has  been  held  in  Tennessee,  that  where 
a  hired  slave  dies,  or  runs  away,  the  fact  of  such  death,  or  running  away 
being  proved  by  the  hirer,  the  owner  must  prove  that  negligence  inter- 
vened to  charge  the  hirer  with  the  loss.  Runyan  v.  Caldwell,  7  Hnmph. 
(Tenn.)  R.  134.  So  in  Kentucky,  Hawkins  v.  Pythian,  8  Mon.  (Ken.) 
R.  515  ;  7  Ibid.  662. 


CH.  V.]       THEIR  DUTY  TO  RECEIVE  GOODS. 


CHAPTER  V. 

OF  THE  DUTY  OF  A  COMMON  CARRIER  TO  RECEIVE  GOODS,  AND 
OF  THEIR  DELIVERY  TO  HIM  AS  THE  COMMENCEMENT  OF  HIS 
RESPONSIBILITY. 

§  323.  As  has  been  already  stated,  a  common  carrier  is 
distinguished  from  a  private  carrier,  both  in  respect  to  the 
duty  which  the  law  imposes  upon  him,  in  consequence  of 
the  public  employment  he  has  voluntarily  assumed,  to  receive 
goods  which  are  offered  for  carriage  ;  and  in  respect  to  his 
responsibility  for  their  safety,  after  they  are  in  his  custody.1 

§  124.  In  respect  to  the  first  mentioned  distinction,  the 
law  has  been  lately  laid  down  by  the  Supreme  Court  of  the 
United  States,  that  a  common  carrier  "  is  bound  to  receive, 
and  carry,  all  the  goods  offered  for  transportation,  subject 
to  all  the  responsibilities  incident  to  his  employment ;  and  is 
liable  to  an  action  in  case  of  refusal."  2  But  in  order  to  ren- 
der a  carrier  liable  in  an  action,  for  refusing  to  lake  charge 
of  goods,  there  must  be  tendered  him  a  reasonable  compensa- 
tion. Indeed  no  person  is  a  common  carrier,  in  the  sense  of 
the  law,  Avho  is  not  a  carrier  for  hire  ;  and  it  is  the  reward 
which  renders  him  liable  ;  as  Lord  Coke  says,  the  carrier 
"  hath  his  hire,  and  thereby  implicitly  undertaketh  the  safe 
delivery  of  the  goods  delivered  to  him."  3  Still,  it  is  not 
required  that  the  reward  to  be  tendered,  should  be  a  fixed 


1  See  ante,  §  67. 

2  New  Jersey  Steam  Navigation  Co.  v.  Merchants  Bank,  Dec.  Term 
Sup.  Court  U.  States,  1847,  Appx.     How.  (S.  C.)  R. ;  and  see  post, 
$  590,  612. 

3  Co.  Litt.  89,  a. 


124  LAW  OF  CARRIERS.  [CH.  V. 

sum  ;  it  being  sufficient,  if  it  be  in  the  nature  of  a  quantum 
meruit  to  or  for  the  benefit  of  the  bailor ; l  yet  if  the  parly 
offering  the  goods,  avers  and  proves  his  readiness  and  wil- 
lingness to  pay  the  money  for  the  carriage,  it  will,  it  seems, 
oe  considered  as  equivalent  to  a  tender.2  Payment  may  also 
sometimes  be  inferred  ;  as,  in  a  suit  against  stage  owners  for 


1  Rogers  v.  Head,  Cro.  Jac.  262.     Assumpsit  against  a  common  carrier ; 
and  upon  motion  in  arrest  of  judgment,  for  that  he  was  not  charged  as  a 
common  carrier ;  and  that  the  promise  was  not  for  any  certain  sum,  but 
only  that  he  would,  rationabiliter,  content  him  ;  non  alocatur,  "for  the 
consideration  is  sufficient,  because  a  carrier  may  demand,  and  the  other  is 
bound  to  pay,  as  much  as  is  reasonable."     Bastard  v.  Bastard,  2  Show. 
R.  81.     Action  against  a  carrier  for  loss  of  a  box;  upon  motion  in  arrest 
of  judgment,  because  no  particular  sum  had  been  agreed  upon  for  the  car- 
riage, but  only  that  a  reasonable  reward  was  to  be  paid,  held  well  enough ; 
for  as  in  such  case  a  carrier  may  maintain  a  quantum  meruit,  he  is  as  much 
liable  as  if  there  is  a  particular  agreement  for  a  sum  certain.     S.  P.  ad- 
mitted in  Lovett  v.  Hobbs,  Id.  129.     Boulston  v.  Sanderford,  Skin.  R. 
279;  Jackson  v.  Rogers,  2  Shower,  R.  328 ;  Riley  v.  Home,  5  Bing.  R. 
217;  Macklin  v.  Waterhouse,  Ib.  212;  Hollister  v.  Nowlen,  19  Wend. 
(N.  Y.)  R.  234;  Cole  v.  Goodwin,  Ib.  251  ;  Bac.  Abr.   Carriers,  B.; 
2  Kent,  Comm.  598  ;  Story  on  Bailm.  §  508.     Carrier  liable  to  be  sued  if 
he  refuse  to  carry  goods  for  the  common  reward.     Hurrill  v.  Owens, 

1  Dev.  &  Bat.  (N.  C.)  R.  273  ;  Anon.  v.  Jackson,  1  Hayw.  (N.  C.)  R. 
14.     "  It  is  exceedingly  clear,  that  no  person  is  a  common  carrier,  in  the 
sense  of  the  law,  who  is  not  a  carrier  for  hire  ;  that  is,  who  does  not 
receive,  or  is  not  entitled  to  receive,  any  recompense  for  his   services. 
The  known  definition  of  a  common  carrier,  in  all  our  books,  fully  estab- 
lishes this  result.     If  no  hire  or  recompense  is  payable  ex  debito  justiti&, 
but  if  something  is  bestowed  as  a  mere  gratuity  or  voluntary  gift,  then, 
although  the  party  may  transport  either  persons  or  property,  he  is  not  in 
the  sense  of  the  law  a  common  carrier ;  but  he  is  a  mere  mandatary,  or 
gratuitous  bailee  ;  and  of  course  his  rights,  duties,  and  liabilities  are  of  a 
very  different  nature  and  character  from  those  of  a  common  carrier.     It  is 
not  necessary,  that  the  compensation  should  be  a  fixed  sum,  or  known  as 
freight;  for  it  will  be  sufficient  if  a  hire  or  recompense  is  to  be  paid  for 
the  service,  in  the  nature  of  a  quantum  meruit,  to  or  for  the  benefit  of  the 
Company."     Per  Story,  J.,  in  Citizens  Bank  v.  Nantucket  Steamboat  Co. 

2  Story  (Cir.  Co.)  35. 

2  Story  on  Bailm.  $  508 ;  Pickwick  v.  Grand  Junction  Railway  Co. 
9  Dowl.  Pad.  Cases,  766.     And  see  post,  §  356,  et  seq.  and  post,  §  418. 


CH.  V.]        THEIR  DUTY  TO  RECEIVE  GOODS.         125 

loss  of  baggage,  payment  of  the  fare  need  not  be  expressly 
proved,  inasmuch  as  it  may  be  inferred  without  violent  impli- 
cation, it  being  seldom  if  ever  neglected.1 

§  125.  Nevertheless,  there  may  be  reasonable  grounds  for 
a  refusal  by  a  carrier  to  take  the  goods,  and  such  grounds  as 
will,  if  supported,  be  a  legal  defence  to  an  action  for  the  non- 
carriage  of  the  goods.  If  a  carrier  refuses  to  take  charge  of 
goods  because  his  coach  is  full,  it  is  a  reasonable  ground  of 
refusal.2  In  the  words  of  Mr.  Justice  Best,  "  he  must  take 
what  is  offered  to  him,  to  carry  to  the  place,  to  which  he 
undertakes  to  convey  goods,  if  he  has  room  for  it.  in  his  car- 
riage." 3  So  also,  if  he  has  no  convenient  means  of  carry- 
ing the  goods  offered,  with  security ;  4  or  because  the  goods 
are  of  a  nature,  which  will  at  the  time  expose  them  to  extra- 
ordinary danger  or  popular  rage  ;  5  or  because  the  goods  are 


1  M'Gill  v.  Rowand,  3  Barr  (Penn.)  R.451. 

2  Action  against  a  coach-master,  for  refusal  to  carry  goods  ;  but  evi- 
dence being  given  that  the  coach  was  full,  wherefore  the  defendant  denied 
to  take  charge  of  the  goods ;  it  was  agreed  to  be  a  good  answer ;  "  for  if 
an  hostler  refuses  a  guest,  his  house  being  full,  and  yet  the  party  says  he 
will  shift,  &c.  ;  if  he  be  robbed,  the  hostler  is  discharged."     Lovett  v. 
Hobbs,  2  Show.  R.  127. 

3  Riley  v.  Home,  5  Bing.  R.  217.     It  is  agreed,  says  Cowen,  J.,  in 
Cole  v.  Goodwin,  by  all  the  books,  that  while  the  carrier  enjoys  the  privi- 
leges of  a  common  carrier,  it  is  a  duty  he  cannot  escape  in  any  form  to 
receive  goods,  if  he  has  room  to  carry  them,  for  a  reasonable  reward  ;  and 
the  reasonable  reward  may  be  set  down  as  the  accustomed  reward  for  like 
services.     Cole  ».  Goodwin,   19  Wend.   (N.  Y.)  R.  261,  and  Appx.  ; 
9  Leigh  (Va.)  R.  347  ;  Robins  ex  parte,  7  Dowl.  Parl.  Ca.  566. 

*  Case  against  a  defendant,  a  common  carrier,  for  refusing  to  carry  a 
pack,  though  offered  his  hire  ;  and  held  by  the  Lord  Jeffries,  "  that  the 
action  is  maintainable  as  well  as  it  is  against  an  innkeeper  for  refusing  a 
guest,  being  tendered  satisfaction  for  the  same.  Note,  it  was  alleged  and 
proved,  that  he  had  convenience  to  carry  the  same,  and  the  plaintiff  had  a 
verdict.  Jackson  v.  Rogers,  2  Shower,  R.  327. 

5  Case  against  a  common  carrier  for  so  negligently  carrying  wheat,  that 
it  was  seized  by  a  mob,  during  riots.  But  as  the  defendant  had  been 
prevailed  upon  to  send  it  by  a  piivate  boat,  and  not  in  his  usual  course  of 
11* 


126  LAW  OF   CARRIERS.  [CH.  V. 

not  of  a  sort  which  he  is  accustomed  to  carry  ; l  or  because 
the  goods  are  brought  at  an  unreasonable  time.2  And  a 
carrier,  moreover,  is  not  bound  to  receive  goods,  until  he  is 
ready  to  engage  in  their  transit.8 

§  126.  And  it  has  been  considered  in  this  country,  that  the 
rule  of  the  Common  Law,  that  a  person,  who  holds  himself 
out  as  a  common  carrier,  is  obligated  to  take  employment  at 
the  current  price,  will  not  apply,  unless  the  carrier  has  a  partic- 
ular route  between  certain  fixed  termini ;  and  that,  although 
in  England  the  duty  of  the  carrier  to  carry  at  request  upon 
a  particular  route,  is  the  criterion  of  the  profession,  it  should 
not  be  so  in  this  country.  At  least  it  has  been  so  considered 
in  so  far  as  it  relates  to  the  State  of  Pennsylvania.  C.  J. 
Gibson,  in  delivering  the  opinion  of  the  Supreme  Court  of 
that  State,  in  Gordon  v.  Hutchinson,4  held,  that  rules  which 

carriage,  at  the  express  request  of  the  plaintiff,  the  Court  held,  that  it  was 
a  question  of  fact  for  the  jury  to  find,  if  the  corn  had  been  put  on  board, 
according  to  the  usual  course  of  dealing  with  a  common  carrier ;  and  the 
jury  having  found,  that  it  was  not  a  transaction  in  the  common  course  of 
trade,  it  was  to  be  considered  as  a  charge  received  under  such  circumstan- 
ces, that  if  the  defendant  had  been  apprized  of  them,  it  is  clear  he  would 
not  have  contracted  to  receive  them  as  a  common  carrier ;  and  that  there 
was  a  tacit  stipulation  that  he  should  not  be  answerable  for  any  damage 
which  might  arise  from  the  mob ;  without  which  no  reasonable  man  would 
have  undertaken  for  the  carriage  of  the  goods.  Edwards  et  al.  v.  Sher- 
ratt,  1  East,  R.  604. 

1  See  ante,  §  99  et  seq.  and  post,  §  209,  et  seq. 

2  Story  on   Bailm.  §  508 ;  Packard  v.  Grand  Junction  Railway  Co. 
12  M.  &  Welsb.  R.  766  ;  and  see  post,  §  136. 

3  l6id.  ;  Lane  v.  Cotton,  1  Ld.  Raym.  R.  652  ;  1  Com.  R.  105.     In 
England  it  is  considered  that  railway  companies  are  not  in  general  bound 
to  provide  means  of  carrying  every  possible  description  of  goods,  but  that 
they  have  a  discretionary  power  in  this  respect.     The  Liverpool  &  Man- 
chester Co.  however,  constitutes  an  exception.     See  Stat.  7  Geo.  4,  c.  29, 
s.  138,  (Local  and  Personal.)     Waif.  Sum.  Law  of  Railroads,  304. 

4  Gordon  v.  Hutchinson,  1  Watts  &  S.  (Penn.)  R.  285  ;  and  see  the 
decision  in  this  case,  and  the  views  of  Chief  Justice  Gibson,  more  fully 
stated,  ante,  $  70.     See  also  Steinman  v,  Wilkins,  7  Watts  &  S.  (Penn. 
R.  466. 


CH.  V.]  THEIR  DITTY  TO   RECEIVE   GOODS.  127 

have  received  their  form  from  the  business  of  a  people  whose 
occupations  are  definite,  regular,  and  fixed,  must  be  applied 
with  much  caution,  and  no  little  qualification,  to  the  business 
of  a  people  whose  occupations  are  more  vague,  desultory, 
and  irregular,  than  is  the  case  in  an  old  country,  and  one 
comparatively  limited  in  point  of  territory,  like  England. 
In  Pennsylvania,  he  said,  there  were  no  carriers,  exclusively 
between  particular  places,  before  the  establishment  of  public 
lines  of  transportation;  and,  according  to  the  English  rule, 
there  could  have  been  no  common  carriers,  for  it  was  not 
pretended,  that  a  wagoner  could  be  compelled  to  load  for 
any  part  of  the  continent ;  and  nothing,  he  said,  was  more 
common  formerly  than  for  wagoners  to  lie  by,  in  Philadelphia, 
for  a  rise  of  wages.  He  admitted,  that  the  policy  of  holding 
the  carrier  liable  as  an  insurer,  was  more  obviously  dictated 
by  the  solitary  and  mountainous  region  through  which  his 
course  for  the  most  part  lay  ;  than  it  is  by  the  frequented 
thoroughfares  of  England. 

§  127.  In  the  above  case  reference  is  made  to  the  extra- 
ordinary risk  of  transporting  through  a  region  "  solitary  and 
mountainous."  Now  the  Common  Law  has  considered  it 
reasonable,  that  the  carrier  should  in  cases  of  extraordinary 
risk,  have  the  power  of  contracting,  by  special  contract, 
upon  extraordinary  terms.1  It  is  laid  down,  that  if  the  rules 
of  commercial  Jaw  impose  upon  the  carrier  the  responsibilities 
of  an  insurer,  his  reward  ought,  in  every  case  to  correspond 
with  the  greater  warranty  undertaken,  and  additional  pre- 
cautions necessary  to  be  provided  by  him.2  "  As  the  law 
makes  the  carrier  an  insurer,"  says  Mr.  J.  Best,  "  and  as  the 
goods  he  carries  may  be  injured  or  destroyed  by  many  acci- 
dents, against  which  no  care  on  the  part  of  the  carrier  can 
protect  them,  he  is  as  much  entitled  to  be  paid  a  premium, 


1  Jeremy  on  Carr.  39,  42;  Story  on  Bailm.  §  519  ;  post,  Chap.  VII. 

2  Jeremy  ub,  sup. ;  Gibbon  v.  Paynton,  4  Burr.  R.  2301. 


128 


LAW   OF   CARRIERS. 


[CH.  V. 


for  his  insurance  of  their  delivery  at  the  place  of  their  desti- 
nation, as  for  the  labor  and  expense  of  carrying  them  there."  l 
If  a  person  send  to  a  carrier's  office  to  know  his  rate  of  char- 
ges, the  carrier  is  bound  by  the  representation  there  made  by 
his  clerks  ;  and  if  the  goods  are  sent  upon  the  faith  of  such 
representation,  the  carrier  cannot  charge  more  than  the  sum 
named,  although  the  clerk  may  have  inadvertently  fallen  into 
a  mistake.2 

§  128.  The  compensation  of  companies  incorporated  for 

1  Riley  v.  Home,  5  Bing.  R.  217.     Where  a  carrier  was  to  carry  a  bag 
of  gold  across  Hounslow  Heath,  it  was  thought  that  he  was  justly  entitled 
to  charge  a  rate  of  remuneration  proportioned  to  the  increased  risk  he  run 
by  so  doing.     Tyler  v.  Morrice,  Garth.  R.  486  ;  and  see  Sheldon  v.  Rob- 
inson, 7  N.  Hamp.  R.  157  ;  Orange  County    Bank  v.  Brown,  9  Wend. 
(N.  Y.)  R.  114;    Hollister  v.  Nowlen,   19  Ib.  239,  241;  and  Appx. 
p.  xviii. 

2  Wingfield  v.  Packington,  2  C.  &  Payne,  R.  600.     In  England,  a  rail- 
way company,  under  the  provisions  of  the  act  of  incorporation,  have  a 
right  to  fix  their  own  charges  for  the  carriage  of  goods,  subject  only  to  the 
conditions  imposed  by  their  act.     It  usually  forms  part  of  these  conditions 
that  the  charges  shall  be  reasonable  and  equal  to  all  persons,  or  equal  under 
the  like  circumstances  ;  and  that  no  favor  shall  be  shown  thereby  to  one 
person,  or  description  of  persons  at  the  expense  of  another.     The  criterion 
for  determining  how  far  a  charge  is  reasonable  or  not,  is  to  consider  the 
trouble,  expense,  and  responsibility  attending  the  receipt,  carriage,  and 
delivery  of  the  goods  in  question.     Where  these  are  equal,  the  charge 
should  be  the  same  ;  where  they  vary,  the  charge  may  fairly  be  varied  in 
the  same  proportion.     For  instance,  for  small  parcels  more  may  fairly  be 
charged  by  the  company  than  a  proportionate  part,  according  to  weight,  of 
the  price  of  larger  parcels  of  the  same  commodity,  by  reason  of  the  greater 
trouble  in  receiving,  despatching,  and  delivering  them,  and  their  exposure 
to  a  much  greater  risk  of  abstraction  and  loss.     But  if  a  number  of  small 
parcels  are  united  in  one  large  package,  and  in  that  state  delivered  to  the 
company,  consigned  to  one  person,  the  trouble  and  responsibility  are  re- 
duced to  much  the  same  degree  as  if  all  the  articles  contained  in  the  pack- 
age were  the  property  of  the  same  owner  and  intended  to  be  delivered  to 
him,  the  only  difference  being,  that  in  the  former  case  —  supposing  a  mis- 
delivery or  other  conversion  of  the  goods  by  the  agents  or  servants  of  the 
company  —  the  company  would  be  liable  to  several  actions  of  trover  instead 
of  one.     Waif.  Sum.  Law  of  Railways,  p.  317. 


CH.  V.]  COMMON   CARRIERS   OF  MONEY.  129 

the  purpose  of  acting  as  common  carriers,  is  sometimes  sub- 
ject to  rules  imposed  by  the  legislature  ;  and  acts  of  the  leg- 
islature conferring  privileges  upon  such  a  company,  and 
professing  to  give  the  public  certain  advantages  in  return, 
are  to  be  construed  strictly  against  the  company,  and  libe- 
rally in  favor  of  the  public.  By  the  Acts  of  Parliament 
under  which  the  Great  Western  Railway  Company,  in  Eng- 
land, was  incorporated,  it  was  provided,  that  the  charges  for 
the  carriage  of  goods  should  be  reasonable  and  equal  to  all 
persons  ;  and  that  no  reduction  or  advance  should  be  made, 
either  directly  or  indirectly,  in  favor  of,  or  against,  any  par- 
ticular person.  The  company  acted  themselves  as  carriers 
for  the  public,  and  issued  certain  scales  of  their  charges  for 
carriage  of  goods,  including  the  collection,  loading,  unload- 
ing, and  delivery  of  parcels ;  and  they  also  carried  goods 
for  other  carriers,  to  whom  they  made  certain  allowances, 
as  an  equivalent  for  the  trouble  of  the  collection,  &c.  of  par- 
cels ;  such  collection,  &c.  being  performed  by  the  carriers. 
But  in  their  dealings  with  A.,  a  particular  carrier,  they  re- 
fused to  make  such  allowances,  but  were  willing  to  perform 
for  him  all  the  things  which  formed  the  consideration  for 
such  allowances,  and  it  was  held,  that  the  charges  to  A.  were 
not  equal  or  reasonable.  The  company,  in  their  transactions 
with  the  public,  and  with  other  carriers,  made  the  following 
distinction  as  to  their  charges  for  carriage  :  In  the  case  of  the 
public,  if  there  were  several  packages  from  one  consignor  to 
several  consignees,  or  from  several  consignors  to  one  con- 
signee, the  charge  was  upon  the  aggregate  weight.  In  the, 
case  of  carriers,  if  there  were  several  packages  for  several 
consignees,  the  charge  was  upon  the  separate  weight  of  each 
package,  unless  more  than  one  package  belonged  to  the 
same  consignor,  (not  being  the  carrier,)  or  was  going  to  the 
same  consignee,  in  either  of  which  cases  the  charge  was 
upon  the  aggregate  weight.  But  in  such  cases,  the  company 
recognized  the  carrier  only  as  the  consignor  and  consignee  of 
the  goods,  the  agent  of  such  carrier,  in  fact,  receiving  the 
goods  at  the  end  of  the  transit.  It  was  held,  that  the  com- 


130  LAW   OF    CABKIERS.  [CH.   V. 

pany  were  bound  to  treat  a  carrier  as  consignor  and  con- 
signee, for  all  purposes,  including  the  mode  of  charging  in 
the  aggregate.  And  it  was  also  held,  that  A.,  having  paid 
the  extra  charges  in  both  of  the  instances  above  mentioned, 
might  recover  the  amounts  of  such  payments  in  an  action 
for  money  had  and  received  against  the  company ;  such 
payments  not  being  voluntary,  but  made  in  order  to  induce 
the  company  to  do  that  which  they  were  bound  to  do,  with- 
out requiring  such  payments.1  The  restriction  in  the  charter 
of  the  Camden  &  Amboy  Railroad  Company,  limiting  their 
charge  for  the  transportation  of  property,  to  the  rate  of  eight 
cents  per  mile,  extends  and  appHes  to  the  whole  line  of  com- 
munication which  they  were  incorporated  and  authorized  to 
perfect  —  that  is,  from  the  city  of  New  York  to  the  city  of 
Philadelphia.  Or,  in  other  words,  the  restriction  was  not 
intended  to  be  applied  only  to  the  railroad,  and  to  leave  the 
company  to  charge  at  discretion  on  their  conveyances  by 
water.2 

§  129.  The  entire  weight  of  the  responsibility  rigorously 
imposed  by  law  upon  a  common  carrier,  falls  upon  him  con- 
temporaneously (eo  instanti]  with  a  complete  delivery  of  the 
goods  to  be  forwarded,  if  accepted,  with  or  without  a  special 
agreement  as  to  reward  ;  for  the  obligation  to  carry  safely, 
on  delivery,  carries  with  it  a  promise  to  keep  safely  before 
the  goods  are  put  in  itinere?  By  the  ordinances  of  France, 
and  of  some  other  countries,  it  is  provided,  in  cases  of  in- 
surance, that  if  the  time  of  the  risk  be  not  regulated  by  the 


1  Parker  v.  Great  Western  Railway  Co.  7  M.  &  Grang.  R.  253. 

2  Camden  &  Amboy  Railroad  Co.  v.  Briggs,  1  New  Jersey  R.  406. 

3  Randleson  v.  Murray,  8  Adol.  &  Ell.  R.  109;  Dale  v.  Hall,  1  Wils. 
R.  281,  also  the  case  of  Goff  v.  Clinkard  there  cited,  in  which  a  ship- 
master was  held  liable  for  the  accident,  which  happened  in  letting  down 
into  the  vessel's  hold  a  puncheon  of  rum,  and  all  possible  care  was  used. 
See  also  Story  on  Bailm.  §  536  ;  Williams  v.  Peytarin,  4  Mart.  (Louis.) 
R.  304;  McHenry  v.  Railroad  Cor.  4  Harring.  (Del.)  R.  448.     Blaneh- 
ard  v.  Isaacs,  3  Barb.  (N.  Y.)  R.  389. 


CH.  V.]  CARRIERS   IN   COPARTNERSHIP.  131 

contract,  it  shall  commence,  as  to  the  goods,  from  the  time 
they  are  put  on  board  the  vessel,  or  put  into  barges  to  be 
conveyed  on  board ;  or,  in  other  words,  from  the  moment 
they  leave  the  shore  ;  and  the  reason  assigned  for  this  regu- 
lation, is,  because  the  perils  of  the  sea  commence  from  the 
moment  the  goods  are  on  the  water.1  The  same  doctrine  is 
recognized  and  applied  in  this  country,2  and  it  properly 
applies  to  common  carriers.  In  an  action  against  the  master 
of  a  ship  for  goods  delivered  into  his  custody,  which  were 
stolen  from  the  ship  by  persons  pretending  to  be  officers 
with  a  warrant  to  search,  he  was  held  answerable  for  the 
value  ;  for  he  had  been  usejl  to  receive  the  freight,  and  to 
make  contracts  for  the  transporting  of  goods.3  Where  it 
was  proved,  that  by  the  established  usage  the  goods  were 
delivered  by  a  wharfinger  to  the  mate  and  crew  of  the  vessel 
which  was  to  carry  them,  Lord  Ellenborough  said,  "  Undoubt- 
edly, where  the  responsibility  of  the  ship  begins,  that  of  the 
wharfinger  ends ;  the  mate  is  such  a  recognized  officer  on 
board  the  ship,  that  delivering  to  him  is  a  good  delivery  ;  if 
the  jury  believe,  that  the  mate  received  the  goods,  they  are 
therefore  in  his  care  ;  and  if  they  were  once  well  delivered  to 
the  mate,  their  being  lost  on  the  wharf  cannot  affect  the  whar- 
finger." 4  It  is  in  many  cases  the  usage  of  the  masters  and 
owners  of  ships  to  receive  goods  at  the  wharf  or  quay  or  in 
their  boats,  or  at  the  warehouse  of  the  shipper  or  his  agent ; 
or  to  take  them  at  other  special  places,  into  the  custody  of 
the  proper  officer  of  the  ship  ;  and  in  all  such  cases,  their 
liability  as  carriers  commences,  at  the  instant  of  such  accept- 
ance of  the  goods.5 


1  Marsh,  on  Ins.  p.  162. 

2  Martin  v.  Salem  Marine  Ins.  Co.  2  Mass.  R.  420. 

3  Mors  p.  Slue,  Sir  T.  Raym.  R.  220,  but  more  correctly  reported  in 
1  Ventris,  R.  190  and  238,  and  recognized  in  2  Ld.  Raym.  R.  919. 

4  Cobham  v.  Downe,  5  Esp.  R.  41.     As  soon  as  the  goods  are  delivered 
on  board,  the  owners  become  insurers  for  all  but  the  excepted  cases. 
Faulkner  v.  Wright,  1  Rice  (S.  C.)  R.  107. 

5  Story  on  Bailm.  §  534 ;  Abbott  on  Shipp.  Pt.  3,  ch.  3,  §  3  ;  Fregans 
v.  Long,  4  B.  &  Cress.  R.  219. 


132 


LAW   OF   CARRIERS. 


[on.  v. 


§  130.  A  ferryman  is  liable  as  a  common  carrier,  it  has 
been  held,  for  the  safety  of  a  carriage  as  soon  as  it  is  fairly 
on  the  slip  or  drop  of  the  flat,  though  driven  by  the  servant, 
or  owner  of  the  carnage,  as  it  is  then,  with  the  horses,  in 
the  ferryman's  possession ;  ferrymen  must  have  their  flats 
so  made  that  all  drivers,  with  horses  and  carriages,  may 
safely  enter  thereon,  and  if  in  making  the  attempt  to  enter, 
the  property  is  lost  or  injured,  the  ferryman  is  liable.1  It 
was  contended,  on  one  occasion,  that  so  far  as  relates  to  the 
transportation  of  carriages  and  horses,  a  ferryman  ought  not 
to  be  liable,  on  the  ground,  that  they  were  only  the  appenda- 
ges of  the  persons,  and  that  the  carriers  of  persons  are  not 
liable  for  their  appendages.  To  support  which,  it  was 
shown,  that  if  a  passenger  in  a  stage  coach  lose  his  watch,  or 
a  lady  her  ring  or  shawl,  the  stage  coachman  is  not  liable. 
But  it  was  considered  by  the  Court  to  be  clear,  that  a  ring  is 
not  like  a  carriage,  and  still  more  clear,  that  where  there  is 
no  undertaking  to  carry,  there  can  be  no  delivery,  and  con- 
sequently no  responsibility  for  the  loss.2 

§  131.  A  person  who  is  a  common  carrier,  may  at  the 
same  time  be  a  warehouseman,  and  after  he  receives  the 
goods,  and  before  they  are  put  in  itinere,  they  may  be  lost 
or  injured.  In  such  case,  if  the  deposit  in  the  warehouse  is 
a  mere  accessary  to  the  carriage,  or  in  other  words,  if  the 
goods  are  deposited  for  the  purpose  of  being  carried,  such 
person's  responsibility,  as  a  common  carrier,  begins  with  the 
receipt  of  the  goods.3  That  is,  he  then  becomes  responsible 
for  all  losses  not  occasioned  by  inevitable  casualty  ;  where- 
as, if  he  were  a  mere  warehouseman,  he  is  not  liable,  unless 
he  has  been  guilty  of  ordinary  neglect.4 


1  Miles  v.  James,  1  M'Cord  (S.  C.)  R.  457. 

2  Cohen  v.  Hume,  McCord,  (S.  C.)  R.  439. 

3  See  ante,  §  75. 

*  Forward  v.  Pittard,  1  T.  R.  27  ;  and  see  ante,  §  75. 


CH.  V.]  DELIVEKY   TO.  133 

§  132.  If  a  wharfinger  undertakes  to  convey  goods  from 
his  wharf  to  the  vessel  for  which  they  are  destined,  in  his  oivn 
lighter,  his  liability  is  similar  to  that  of  a  carrier.  An  action 
was  brought,  in  which  the  defendant  was  both  a  wharfinger 
and  a  lighterman,  for  the  loss  of  goods,  which,  while  upon 
the  defendant's  premises,  were  destroyed  by  fire  ;  and  the 
question  being,  whether  the  defendant,  whose  duty  it  was  to 
convey  the  goods  from  the  wharf  in  his  own  lighter  to  the 
vessel  in  the  river,  was  liable  for  the  loss.  Lord  Ellenbor- 
ough  was  of  the  opinion,  that  the  liability  of  the  wharfinger, 
while  he  had  possession  of  the  goods,  was  similar  to  that  of 
a  carrier.1 

§  133.  An  innkeeper,  likewise,  if  he  is  at  the  same  time  a 
common  carrier,  is  liable,  as  such,  for  any  loss  to  goods  sent 
to  his  inn,  (and  received  there  to  be  forwarded,)  which  hap- 
pens before  they  are  put  in  transit.  It  is  common  in  London, 
that  the  innkeeper  has  some  concern  in  the  coaches  and 
wagons  which  put  up  at  his  house  ;  and  in  those  cases  he  is 
held  liable  as  a  carrier,  whenever  goods  are  delivered  at  the 
inn  for  carriage.2 

§  134.  But  if  a  person  is  at  the  same  time  a  common 
carrier,  warehouseman,  and  forwarding  merchant,  and  he 
receives  goods  into  his  warehouse  to  be  forwarded,  but  not 
until  he  shall  have  received  orders  from,  the  owners,  the  delivery 
to  him  is  not  as  a  common  carrier,  but  only  as  a  warehouse- 
man ;  and  consequently  he  is  only  answerable  in  the  latter 
capacity,  if  the  goods  are  destroyed  while  in  the  warehouse 
by  fire,  and  before  such  orders  have  been  received.3 


1  Maving  v.  Todd,  1  Stark.  R.  72. 

2  Per  Buller,  J.,  in  Hyde  v.  Trent  and  Mersey  Nav.  Co.  5  T.  R. 
389. 

3  Plan  v.  Hibbard,  7  Cowen  (N.  Y.)  R.  497 ;  Ackley  «.  Kellpgg, 
8  Ib.  223  ;  Roskell  ».  Waterhouse,  2  Stark.  R.  461 ;  and  ante,  §  75. 

12 


134  LAW   OF   CARRIERS.  [CH.  T. 

§  135.  If  the  carrier  directs  that  goods  should  be  sent  to 
a  particular  booking-office,  he  is  answerable  for  the  negli- 
gence of  his  booking-office  keeper.1  In  Camden  and  Amboy 
Railroad  Company  v.  Belknap,  (which  was  error  from  the 
Superior  Court  of  the  City  of  New  York,)  Belknap  brought 
an  action  on  the  case  against  the  said  company,  as  common 
carriers  between  New  York  and  Philadelphia,  for  the  loss  of 
his  baggage  ;  and  the  facts  were,  that  the  company,  in  the 
conducting  of  their  business,  kept  two  offices  in  New  York, 
in  one  of  which  they  were  in  the  habit  of  receiving,  and  (if 
requested)  of  locking  up  the  baggage  of  persons  intending  to 
go  on  in  the  next  boat  that  should  depart.  Belknap,  intend- 
ing to  proceed  on  his  journey  by  the  next  boat,  left  his  bag- 
gage at  this  office,  where  it  was  received  by  the  agent  of  the 
company :  and  it  was  lost  before  the  departure  of  the  next 
boat.  Bronson,  J.,  who  gave  the  opinion  of  the  Court,  con- 
sidered it  quite  clear,  upon  this  statement,  that  Belknap's 
trunks  were  in  the  possession  of  the  company  as  common 
carriers,  and  that  they  were  answerable,  in  that  character, 
for  the  safe  keeping  of  the  property  ;  and  that  their  liability 
existed  independent  of  any  other  contract,  express  or  implied, 
for  the  safe  keeping  of  the  property,  and  without  regard  to 
any  question  of  negligence ;  and  that  the  Judge  would  have 
been  well  warranted  in  instructing  the  jury  that  Belknap  was 
entitled  to  their  verdict.2 

•  §  136.  It  is  by  no  means  necessary  to  a  deli-very,  that  mer- 
chandise should  be  entered  upon  any  freight  list,  or  that  the 
contract  of  hire  should  be  verified  by  any  written  memoran- 
dum.3 It  is  always,  however,  more  advisable  for  the  owner 


1  Culpepper  v.  Good,  5  Carr.  &  Payne,  R.  380 ;  and  see  Gilbert  r. 
Dale,  6  Adol.  &  Ell.  R.  543. 

2  Camden  and  Amboy  Railroad  and  Transp.  Co.  v.  Belknap,  21  Wend. 
(N.  Y.)  R.  354. 

3  Citizens  Bank  r.Nantucket  Steamboat  Co.,  2  Story  (Cir.  Co.)  R.  16 ; 
and  see  Parker  v.  Great  Western  Railway  Co.  7  Man.  &  Grang.  R.  253. 


C1I.  V.]  DELIVERY   TO.  135 

of  the  goods,  when  he  presents  them  for  transportation,  to 
have  them  entered  on  the  carrier's  books,  and  also  properly 
marked ;  and  if  they  be  improperly  marked,  in  consequence 
of  which  the  carrier  makes  a  misdelivery,  the  owner  must 
bear  the  loss.1 

§  136  a.  It  is  not  necessary  to  constitute  a  complete  deliv- 
ery to  the  carrier,  that  the  goods  should  be  left  at  the  usual 
place  of  delivery,  at  or  before  the  hour  appointed  for  receiv- 
ing them,  in  order  that  they  may  go  on  the  same  day,  if 
they  are  received  at  a  later  hour  to  be  forwarded  on  the  same 
day.  As  where  a  railway  company  published  a  printed 
notice,  which  was  fixed  over  the  door  of  their  station,  for  the 
reception  of  goods  in  Liverpool,  that  all  goods  received  after 
four  o'clock,  P.  M.,  would  be  forwarded  on  the  next  working 
day.  Long  after  the  publication  of  this  notice,  certain  goods 
were  brought  to  the  station,  about  half  past  five,  P.  M.,  to  be 
forwarded  by  the  railway  to  Birmingham.  The  person  who 
brought  them  (a  servant  of  the  owner)  saw  the  company's 
weigher,  and  asked  him  "  if  there  was  any  time,"  that  is,  for 
the  goods  to  proceed  that  evening.  The  weigher  saying 
there  was,  the  goods  were  placed,  by  the  company's  porters, 
on  the  trucks  on  which  goods  are  carried  upon  the  railway. 
The  same  person  had,  on  former  occasions,  taken  goods  of 
the  same  kind  to  the  station  at  a  later  hour,  which  never  had 
been  refused  for  being  too  late,  and  which  had  been  forwarded 
the  same  evening.  Upon  these  facts  it  was  held,  that  there 
was  evidence  to  go  to  the  jury  of  a  special  contract  by  the 
railway  to  forward  the  goods  in  question  on  the  same  evening 
on  which  they  were  delivered.2 

§  137.  Delivery  may  also  be  made  at  a  different  place,  as 
well  as  at  a  different  hour  from  the  one  established  by 
notice  or  usage.  If  a  package  is  received  by  the  agent  of  a 

1  The  Huntress,  Daveis,  Dist.  Co.  R.  83. 
Pickford  v.  Grand  Junction  Railway  Co.  12  M.  &  Welsh.  R.  766. 


136  LAW   OF   CARRIERS.  [CH.  V. 

common  carrier  for  transportation  at  his  suggestion,  at  a 
place  other  than  the  office  of  the  carrier,  and  is  entered  on 
the  way  bill,  the  carrier  will  be  held  answerable.  As  where 
a  package  was  delivered  to  the  agent  of  a  stage-coach  com- 
pany at  the  post-office,  where  the  stage  was  standing,  (and 
not  at  .the  office  of  the  company,)  to  be  carried  from  Boston 
to  Hartford,  and  was  by  the  agent,  when  he  received  it, 
entered  on  the  way-bill,  he  having  previously  directed  the 
person  to  bring  it  to  the  post-office,  and  the  package  being 
lost  before  reaching  Hartford  ;  the  Court  held,  that  the  as- 
sent of  the  defendants,  that  it  should  be  left  at  the  post-office, 
the  receipt  of  it  by  the  agent,  and  the  entry  of  it  upon  the 
way-bill,  took  away  what  force  that  might  otherwise  have 
been  in  the  objection,  that  the  package  was  not  left  at  the 
office  or  place  of  business  of  the  defendants.1 

§  138.  Where  the  plaintiff  sent  an  agent  to  the  carrier's 
booking-office,  and  the  agent  desired  a  man  to  be  sent  to  his 
(the  agent's)  house,  to  fetch  a  package,  and  it  was  brought 
by  one  of  the  carrier's  men  from  the  agent's  house  to  the 
booking-office,  it  was  held  a  delivery  by  the  plaintiff  to  the 
carrier.2 

§  139.  If  a  message  be  left  at  the  booking-office  of  a 
carrier  from  N.  to  L.,  for  his  van  to  call  for  the  plaintiff's 
luggage,  at  another  inn,  for  the  purpose  of  its  being  carried 
to  L.,  and  the  carrier's  servant,  and  van  go  to  the  other  inn, 
and  the  plaintiff's  luggage  be  there  put  into  the  carrier's  van, 
it  is  a  delivery  to  the  carrier  ;  and  if  the  luggage  is  lost  from 
the  van,  the  carrier  is  as  much  liable  for  the  loss,  as  he  would 
be  if  the  luggage  and  the  plaintiff  had  been  taken  to  the 
defendant's  regular  booking-office.3 


1  Phillips  v.  Earle,  8  Pick.  (Mass.)  R.  182. 

2  34  Eng.  Com.  Law  Rep.  429. 

3  Davy  v.  Mason,  1  C.  &  Marsh,  R.  45. 


CH.  V.]  DELIVERY  TO.  137 

9 

§  140.  The  responsibility  of  a  common  carrier,  therefore, 
is  fixed  by  the  acceptance  of  the  goods,  whether  the  accept- 
ance be  in  a  special  manner,  or  according  to  the  usage  of  his 
business.1  But  an  acceptance  in  some  way  is  indispensable  ; 
for  if  it  appears  that  there  is  no  intention  to  trust  the  carrier 
with  the  custody  of  the  goods,  he  will  not  be  held  liable.2  If 
they  are  placed  in  the  carrier's  cart  or  coach,  without  the 
knowledge  and  acceptance  of  the  carrier,  his  servants,  or 
agents,  there  has  been  indeed  no  bailment  of  them  to  the 
carrier,  and  of  course  he  cannot  be  responsible  for  the 
loss  of  them.3  If  a  passenger  travelling  on  the  outside  of  a 
stage-coach,  keeps  a  parcel  or  package  in  his  own  hands  and 
under  his  own  care  ;  or  takes  his  baggage  with  him  into 
the  interior  of  the  vehicle,  professing  to  watch  and  take  care 
of  it  himself,  and  the  thing  is  lost ;  the  carrier  is  not  respon- 
sible for  it,  because  it  was  never  delivered  to  him,  or  his  ser- 
vants, or  in  any  way  intrusted  to  his  or  their  custody.4  Where 
an  action  was  brought  against  a  railroad  company  for  the  loss 
of  an  overcoat  belonging  to  a  passenger,  it  appearing  that  the 
garment  was  not  delivered  to  the  custody  of  the  defendants, 
but  that  the  passenger,  having  placed  it  on  the  seat  of  the  car 
on  which  he  sat,  forgot  to  take  it  with  him  when  he  left,  and 
it  was  afterwards  stolen  ;  the  defendants  were  not  held  liable.5 
A  fortiori,  a  garment  on  the  person  of  a  passenger,  as  a 
shawl  upon  a  lady,  will  be  regarded  as  entirely  within  the 
possession  and  custody  of  the  wearer,  and  the  carrier  will, 
therefore,  be  held  not  liable  for  the  same  in  case  it  is  lost  or 
stolen.6 

1  Story  on  Bailm.  §  533  ;  2  Kent,  Comm.  598 ;  Harris  v,  Packwood, 
3  Taunt.  R.  264  ;  Boehm  v.  Combe,  2  M.  &  Selw.  R.  172. 

2  Brind  v.  Dale,  8  C.  &  Payne,  R.  207 ;  and  see  ante,  §  76,  77,  82,  85. 

3  Lovett  v.  Hobbs,  2  Show.  R.  127  ;  Leigh  v.  Smith,  1  C.  &  Payne, 
R.  640. 

4  Ad.  on  Contr.  citing  Boys  u.  Pink,  8  C.  &  Payne,  R.  361  ;  Syms  v. 
Chaplin,  5  Adol.  &  Ell.  R.  634. 

5  Tower  t>.  Utica  and  Schenectady  Railroad  Co.  7  Hill  (N.  Y.)  R.  47. 

6  See  the  opinion  of  Colcock,  J.,  in  Cohen  v.  Hume,  1  McCord,  (S.  C.) 
R.  439. 

12* 


138  LAW   OF   CARRIERS.  [CH.  V. 

§  141.  In  the  case  of  Miles  v.  Cattle,1  the  plaintiff  re- 
ceived a  parcel  from  G.  to  book  for  London,  at  the  office  of 
the  defendant  as  a  common  carrier,  but  instead  of  obeying 
that  instruction,  put  the  parcel  into  his  awn  bag,  intending 
to  take  it  to  London  himself.  The  defendants  having  lost 
the  bag,  it  was  held,  that  the  plaintiff  could  not  recover 
damages  in  respect  of  the  parcel.  Tindal,  J.  said,  the  plain- 
tiff, in  violation  of  his  trust,  thought  proper  not  to  deliver 
the  parcel  to  the  defendant,  but  to  deposit  it  in  his  own  bag ; 
thereby  depriving  the  owner  of  any  remedy  he  might  have 
had  against  the  defendant,  and  the  defendant  of  the  sum  he 
would  otherwise  have  earned  for  the  carriage  of  the  parcel. 
Likewise  in  the  case  of  the  Orange  County  Bank  v.  Brown,2 
the  president  of  the  bank  directed  one  P.,  who  was  going  by 
steamboat  from  New  York  to  Newburgh,  to  commit  certain 
packages  of  money,  amounting  to  a  large  sum,  directly  to 
the  captain  of  the  boat.  P.,  not  having  followed  such  direc- 
tion, the  captain  was  not  enabled  to  charge  a  reward  for  the 
carriage  of  the  same,  and  neither  the  captain  nor  the  defencj- 
ants  became  responsible  for  its  safety;  and  it, was  accord- 
ingly held,  that  the  omission  of  P.  to  follow  the  directions, 
was  a  violation  of  his  trust,  and  that  there  was  no  delivery 
to  the  defendants,  by  virtue  of  which  they  became  accounta- 
ble. 

§  142.  Another  case  of  non-acceptance  by  the  carrier,  in 
consequence  of  a  want  of  trust  and  confidence  in  the  car- 
rier, is  the  case  of  the  East  India  Company  v.  Pullen.3  This 
was  an  action  against  a  common  lighterman  on  the  Thames, 
in  which  it  was  held  by  C.  J.  Raymond,  "  that  the  usage  of 
the  company  to  place  an  officer,  called  a  guardian,  in  the 


1  Miles  v.  Cattle,  6  Bing.  R.  743. 

2  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  R.  85.     And  see 
as  to  baggage  of  passengers,  ante,  §  113. 

3  East  India  Company  v.  Pullen,  1  Stra.  R.  690. 


CH.  V.]  DELIVERY  TO.  139 

4i 

lighter,  altered  it  from  the  common  case,  this  not  being  any 

trust  in  the  defendant,  and  the  goods  were  not  to  be  con- 
sidered as  ever  having  been  in  his  possession,  but  in  the 
possession  of  the  company's  servant,  who  had  hired  the 
lighter  to  use  himself;"  he  thought  the  action,  therefore, 
not  maintainable.  But  the  mere  fact,  that  the  owner  or  his 
servant  goes  with  the  goods,  and  not  excluding  the  carrier 
from  the  custody,  will  not  release  the  carrier  from  his  re- 
sponsibility arising  in  consequence  of  his  acceptance  of  the 
goods,  in  the  usual  course  of  business.1 

§  143.  Indeed,  in  deciding  upon  the  circumstances  of  a 
particular  case,  whether  there  has  been  an  actual  delivery 
or  not,  or  such  an  one  as  fixes  the  responsibility  peculiar  to 
a  common  carrier,  is  often  a  matter  of  great  nicety.  Where 
goods  were  delivered  at  a  wharf  to  an  unknown  person 
there,  and  no  knowledge  of  the  fact  was  brought  home  to 
the  wharfinger  or  his  agents,  this  was  held,  by  Lord  Ellen- 
bo.rough,  not  to  Be  a  sufficient  delivery  to  charge  him,  either 
as  wharfinger,  or  as  a  carrier,  with  the  custody  of  the  goods.2 

1  Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  418  ;  and  Cole  v.  Good- 
win, 19  Wend.  (N.  Y.)  R.  251  ;  both  cases  cited  ante,  §  113. 

2  Buckman  v.  Levi,  3  Camp.  R.  414.     This  was  an  action  for  goods 
sold  and  delivered.     The  goods  (chairs)  had  been  sent  (as  at  other  times) 
to  a  wharf,  and  such  had  been  sometimes  booked,  sometimes  not.     The 
plaintiff's  servant  took  them  to  the  wharf,  and  left  them  on  the  premises 
there  piled  up  among  the  goods,  with  a  direction  to  the  defendant,  but 
had  no  receipt  for  them,  nor  was  any  entry  respecting  them  made  in  the 
wharfinger's  books  ;  he  had  no  conversation  with  the  wharfinger,  or  any 
other  person  upon  the  premises,  but  only  saw  a  person  on  the  wharf, 
whom  he  believed  to  be  a  servant  of  the  wharfinger.     Lord  Ellenborough  ; 
"A  due  delivery  of  goods  to  a  carrier  or  wharfinger,  with  due  care  or 
diligence,  is  sufficient  to  charge  the  purchaser.     Before  the  purchaser 
can  be  charged  in  the  present  instance,  he  must  be  put  into  a  situation  to 
resort  to  the  wharfinger  for  his  indemnity.     But  no  receipt  was  taken' for 
the  chairs  ;  they  were  not  booked,  and  no  person  belonging  to  the  wharf 
is  fixed  with  a  privity  of  their  being  left  there  ;  the  defendant  therefore  is 
not  furnished  with  a  remedy  over  against  the  wharfinger,  and  is  not  him- 
self liable  as  purchaser  of  the  goods." 


140  LAW   OF  CARRIERS.  [CH.  V. 

Where  goods  were  left  in  the  yard  of  an  inn,  at  which  the 
carrier  and  other  carriers  put  up,  but  no  actual  delivery  to 
the  carrier  or  his  servant  was  proved,  it  was  held  to  be  no 
delivery  to  the  custody  of  the  carrier  ; l  although  the  carrier 
is  liable  if  the  goods  are  lost  after  they  get  into  the  hands  of 
the  innkeeper,  if  delivered  with  the  express  or  implied  consent, 
and  as  the  servant,  of  the  carrier.2 

§  144.  A  person  sent  a  parcel  directed  to  another  person 
in  London,  to  the  postmaster  of  B.,  to  be  forwarded  to  M. 
The  postmaster  received  2d.  to  book  the  parcel,  and  sent  it 
by  a  mail  cart  to  the  King's  Arms  inn,  at  M.  He  was 
accustomed  so  to  take  in  parcels  for  the  mail  cart.  The 
innkeeper,  at  M.,  booked  the  parcel  for  London,  charging 
2d.  as  "booking"  for  his  own  trouble,  and  also  charging 
on  the  parcel  the  demand  for  carriage  from  B.,  which  he 
had  paid.  He  forwarded  the  parcel  by  a  mail  coach  (of 
which  the  defendants  were  proprietors)  to  London.  Seve- 
ral coaches  were  used  to  stop  at  the  King's  Arms  inn,  aqd 
the  mail  coach  in  question  pulled  up  there,  but  did  not  there 
change  horses.  The  innkeeper  had  no  express  authority 
from  the  defendants  to  take  in  parcels,  and  used  his  dis- 
cretion in  sending  them  by  mail  or  any  other  coach ;  and 
no  regular  booking-office  was  kept  at  the  inn.  The  parcel 
having  been  lost,  it  was  held,  that  the  King's  Arms  was  a 
receiving  house  of  the  defendants,  within  the  carrier's  act  of 
11  Geo.  4,  and  1  Will.  4  ;  and  that  the  plaintiff  might  prop- 


1  Selway  v.  Holloway,  1  Ld.  Raym.  R.  46.     This  case  arose  out  of 
another  action  on  a  contract  to  pay  for  hops,  on  delivery  of  them  to  the 
present  defendant,  a  common  carrier,  and  a  verdict  was  twice  found  for 
that  plaintiff.     The  hops  had  been  lodged  in  the  inn-yard,  and  no  acknowl- 
edgment was  shown  of  their  receipt  by  any  servant  of  the  defendant ;  but 
it  was  proved  that  there  were  many  other  carriers  who  used  the  same 
inn.     And  the  Court  said,  "  they  were  all  of  opinion  that  the  hops  could 
not  be  said  to  be  delivered  to  Holloway." 

2  Per  Buller,  J.,  in  Hyde  v.  Trent  and  Mersey  Navigation  Co.  5  T.  R. 
397 ;  Davy  v.  Mason,  1  C.  &  Marsh,  R.  45. 


CH.    V.]  DELIVERY  TO.  141 

erly  sue  the  defendants  on  a  contract  to  carry  from  M.  to 
London.1 

§  145.  The  question  arose  in  the  State  of  New  York  — 
what  will  constitute  a  delivery  of  goods  to  the  master  of  a 
canal  boat  ?  —  and  it  was  held  to  be  a  sufficient  delivery,  if 
the  goods  intended  for  carriage  are  left  by  or  near  the  boat 
according  to  the  usages  of  business  ;  yet  with  the  qualifica- 
tion, that  such  delivery  must  be  accompanied  with  express 
notice  to  the  master.  The  action  was  an  action  of  trover,  to 
recover  the  value  of  a  box  of  dry  goods,  alleged  to  have  been 
delivered  to  the  defendant  as  master  of  a  canal  boat,  to  be 
transported  from  Albany  to  Charlestown,  in  Montgomery 
county.  It  appeared,  that  before  any  goods  were  put  on 
board,  the  plaintiff  requested  the  defendant  to  receive  a 
quantity  of  merchandise  ;  that  he  consented,  and  on  the 
20th  of  November,  1824,  gave  a  receipt  for  80s.  in  full,  for 
transporting  the  plaintiff's  goods,  described  as  four  boxes 
of  dry  goods,  and  other  articles.  The  bill  of  lading,  dated 
November  24th,  in  the  handwriting  of  the  plaintiff,  and 
subscribed  by  the  defendant,  stated  four  boxes  of  dry  goods. 
On  the  evening  of  the  20th  of  November,  the  plaintiff  came 
on  board  ;  the  defendant  inquired  what  dry  goods  he  had,  and 
he  replied  four  boxes.  Pie  then  made  out  the  bill  of  lading, 
and  delivered  it  to  the  defendant.  It  also  appeared,  that  no 
more  than/owr  boxes  of  dry  goods  were  actually  received  on 
board  ;  and  after  being  so  received,  on  the  evening  of  the 
20th  of  November,  the  plaintiff  came  and  inquired  for  his 
goods.  He  was  informed  of  their  reception,  went  into  the 
room  where  they  were,  and  returned,  saying  all  was  right. 
The  defendant  delivered  the  four  boxes  according  to  his 
contract.  On  the  part  of  the  plaintiff  it  appeared,  that  Jive 
boxes  of  dry  goods  had  been  deposited  on  the  dock,  near 
the  defendant's  boat  on  the  evening  of  the  20th  of  Novem- 
ber. A  man  in  the  boat  said  the  defendant  was  not  on 
board,  and  the  boxes  were  left  lying  on  the  dock.  A  person 

1  Syras  v.  Chaplin,  5  Adol.  &  Ell.  R.  634. 


142  LAW   OF   CARRIERS.  [CH.  V. 

from  the  boat  came,  and  assisted  in  unloading  two  of  the 
four  boxes  brought  by  one  of  the  cartmen.  It  also  appeared, 
that  it  was  customary  for  masters  of  canal  boats  to  receive, 
on  deck,  goods  they  were  to  transport.  That  the  fifth  box 
was  brought  in  the  evening,  and  placed  on  the  dock  where 
the  boat  lay.  That  some  person  on  board  said  it  was  the 
defendant's  boat ;  and  that  more  goods  of  the  plaintiff  were 
coming  on  board.  By  Woodworth,  J.,  who  delivered  the 
opinion  of  the  Court :  —  "  Admitting  that,  according  to  the 
usual  custom  and  understanding  of  parties,  a  delivery  on  the 
dock,  near  the  boat,  is  a  good  delivery  so  as  to  charge  the 
carrier,  it  must  always  be  accompanied  with  express  notice  ; 
otherwise  he  is  not  answerable.  Has  that  been  done  in  the 
present  case  ?  So  far  from  it,  it  appears  to  me  that  in  every 
stage  of  this  transaction,  the  defendant  was  informed  there 
were  four  boxes  only.  So  the  plaintiff  declared  to  the  de- 
fendant ;  such  is  the  language  of  the  receipt  for  the  freight ; 
and  so  is  the  invoice.  From  all  this  the  defendant  was  war- 
ranted in  taking  on  board  four  boxes  of  dry  goods  ;  and 
ought  not  to  be  chargeable  for  not  taking  on  board  the  fifth 
box,  although  it  might  have  been  left  on  the  dock.  From 
the  evidence,  I  think  the  defendant  might  well  presume  a 
fifth  box  was  not  intended  for  his  boat.  But  whether  it  was 
or  not,  there  was  a  failure  on  the  part  of  the  plaintiff  to  give 
the  defendant  information.  The  plaintiff  was  probably  igno- 
rant that  there  was  more  than  four  boxes.  That  is  his  mis- 
fortune ;  not  a  ground  to  charge  the  defendant,  who  appears 
to  have  acted  with  good  faith  ;  and  could  not  know,  from  the 
instructions  he  had  received,  that  any  more  than  four  boxes 
belonged  to  the  plaintiff.  The  defendant  may  not  have 
received  the  fifth  box  on  board  ;  it  may,  by  mistake,  have 
been  put  on  board  another  boat ;  or  perhaps  stolen  ;  but 
there  is  no  presumption  that  the  defendant  ever  converted  it. 
All  the  facts  in  the  case  negative  that  presumption.  I  am 
therefore  of  opinion,  that  the  plaintiff  has  not  proved  suffi- 
cient to  make  out  a  delivery  of  the  goods."  l 

1  Packard  ».  Getman,  6  Cow.  (N.  Y.)  R.  757. 


CH.  V.]  DELIVERY  TO.  143 

§  146.  A  delivery  to  the  servant,  or  duly  authorized  agent, 
of  a  common  carrier,  who  is  in  the  habit  of  receiving  pack- 
ages, is  undoubtedly  a  sufficient  delivery.1  As,  if  the  mate  of 
a  ship  is  a  recognized  officer  on  board,  and  it  has  been  the  well 
known  usage  to  deliver  to  him,  a  delivery  to  him  is  a  good 
and  sufficient  delivery.2  But  the  drivers  of  wagons  and  of 
stage-coaches,  carrying  parcels  for  hire  on  their  own  account, 
and  no  reward  therefor  is  to  be  received  by  the  proprietors, 
will  not,  as  has  been  seen,  bind  the  proprietors.3  The  bail- 
ment in  such  case  can  only  be  considered  a  bailment  to  the 
driver  alone,  and  he  therefore  is  alone  responsible  for  the 
loss.4  A  shipper  contracting  with  the  master  of  a  steamboat, 
and  knowing  that  the  latter  receives  the  goods,  on  his  own 
account,  as  a  part  of  his  privilege,  and  not  in  his  character  of 
agent  for  the  owners,  does  not  render  the  owners  liable  for 
goods  delivered  by  the  shipper  to  the  captain.5  In  King  v. 
Lenoxr6  the  ship  was  not  a  general  ship,  and  was  freighted 
wholly  by  the  owner  ;  the  master  had  a  privilege  which  was 
known  to  the  plaintiff,  and  the  plaintiff,  in  delivering  his  goods 
for  shipment,  to  the  master,  dealt  with  him  on  his  own 
responsibility,  and  not  as  agent  for  the  owner.  The  case  of 
Walter  v.  Brewer,7  was  in  some  respects  the  same  :  The 
defendant  was  owner  of  the  ship,  and  loaded  her  himself, 
and  the  goods  for  which  the  plaintiff  prosecuted,  were  deliv- 
ered on  board  clandestinely  during  the  temporary  absence  of 


1  See  ante,  §  91,  et  seq.  ;  Jeremy  on  Carr.  61 ;  Anjou  v.  Deagle,  3  H. 
&  Johns.  (Md.)  R.  206  ;  Lloyd  v.  Barden,  Co.  of  Appeals  of  S.  Carolina, 
Law  Rep.  for  March,  1849,  p.  521. 

2  Cobham  ».  Downe,  5  Esp.  R.  41. 

3  Ante,  §  76,  77.     There  is  no  intention  to  confide  tin  the  proprietors, 
ante,  $  140,  et  seq. 

4  Bignold  v.  Waterhouse,  1  M.  &  Selw.  R.  259 ;  Williams  v.  Crans- 
ton, 2  Stark.  R.  48. 

5  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  327,  and  6  Ib.  335;  also  ante, 
§85. 

6  King  v.  Lenox,  19  Johns.  (N.  Y.)  R.  235. 

7  Walter  ».  Brewer,  11  Mase.  R.  99. 


144  LAW   OF   CARRIERS.  [CH.  "£, 

the  defendant.  The  Court  held,  that  as  there  was  nothing 
left  to  the  care  of  the  master  but  the  care  of  the  management 
and  navigation  of  the  ship,  and  especially  the  ship  being 
known  not  to  be  a  freighting  ship,  the  clandestine  delivery 
on  board  was  not  a  delivery  to  the  defendant,  and  that  there- 
fore he  was  not  responsible  for  the  goods. 

§  146  a.  It  is  very  clear,  that  if  an  article  be  delivered  to 
a  servant  of  a  carrier,  it  must  be  to  such  an  one  as  is  en- 
trusted to  receive  goods,  and  not  to  one  engaged  in  other 
duties.  Therefore,  where  a  coat  was  delivered  to  the  driver 
of  a  stage-coach,  by  a  person  not  a  passenger,  to  be  deliv- 
ered to  another,  in  a  different  place,  and  the  driver  refused 
to  put  it  on  the  way-bill,  saying  he  had  no  right  to  do  so, 
but  he  would  get  the  next  agent  to  do  it  at  the  town  of  S.,  it 
was  held,  that  there  was  no  delivery  of  the  coat  to  the  coach 
proprietor,  and  that  he  was  not  responsible  as  common  car- 
rier for  the  loss  thereof.1 

§  147.  The  charterer  and  not  the  general  owner  of  a 
vessel,  it  has  been  seen,  is  the  person  liable  for  the  acts  of 
the  master  in  the  course  of  his  employment.2  Nothing  is 
better  settled,  than  that  if  the  owners  of  a  ship  have  chartered 
it  to  a  third  person,  the  captain  must,  for  that  voyage,  be 
taken  to  be  the  agent  of  the  latter,  for  goods  delivered  to 
him  ;  and  the  owners  cannot,  hac  vice,  be  made  liable  for  his 
acts.  Thus,  in  an  action  against  the  owners  of  a  ship  for 
not  delivering  goods  delivered  on  board,  it  was  held  by  Lord 
Kenyon,  that  "  although  the  defendants  were  owners,  yet  no 
express  contract  being  proved  with  them,  and  the  ship  having 
been  in  fact  chartered  for  that  voyage  by  them  to  other  per- 
sons, those  persons  were  for  that  voyage  to  be  deemed  as  the 
owners,  and  the  captain  as  their  agent  pro  hac  vice;  the 
liability  being  shifted  by  the  charter  from  one  party  to  the 

1  Blanchard  «.  Isaacs,  3  Barb.  (N.  Y.)  R.  389. 

2  Ante,  §  89  ;.  and  post,  $  395,  et  seq. 


CH.  V.]  DELIVEKY   TO.  145 

other."  l  A  delivery  to  the  master  of  a  vessel  under  a 
charter,  the  hirer  having  the  whole  control  of  her,  for  the 
time,  to  victual  and  man  her,  and  who  is  to  pay  over  a 
portion  of  the  net  proceeds  to  the  owner,  for  the  use  of  her, 
was  held  not  to  render  the  owner  of  her  liable  to  the  ship- 
pers for  goods  delivered  on  board  the  vessel  which  had  been 
embezzled,  or  otherwise  not  accounted  for,  by  the  master.2 
On  the  same  principle  it  is,  that  the  owner  of  a  ferry  is  not 
liable  for  the  loss  of  goods  in  crossing  it,  delivered  to  the 
ferryman,  if  the  ferry  be  rented,  and  in  possession  of  the 
ferryman  as  tenant."  3 

1  James  v.  Jones,  3  Esp.  R.  27. 

2  Reynolds  v.  Tappan,  15  Mass.  R.  370  ;  and  see  Schieffelin  v.  Har- 
vey, 6  Johns.  (N.  Y.)  R.  170. 

3  Ladd  v.  Chotard,  1  Miner  (Ala.)  R.  366.     And  see  as  to  Ferries, 
ante,  §  82. 


13 


146  LAW   OF   CARRIERS.  [CH.  VI. 


CHAPTER  VI. 

OF   THE   RESPONSIBILITY   OF   COMMON   CARRIERS. 

§  148.  THAT  a  common  carrier  is  answerable,  as  has  been 
already  stated,1  for  all  losses  which  do  not  fall  within  the 
excepted  cases  of  the  "  act  of  God  "  and  "  the  king's  (pub- 
lic) enemies,"  has  been  the  settled  law  of  England  for  ages.2 
The  policy  of  imposing  an  extraordinary  degree  of  respon- 
sibility upon  common  carriers  was  suggested  by  the  edict  of 
the  Prsetor  in  the  Roman  law,3  before  which  carriers  were 
not  put  under  any  peculiar  obligation  which  did  not  belong 
to  other  bailees  for  hire.  The  edict  referred  to,  did  not  ex- 
tend in  terms  to  carriers  on  land,  but  in  most,  if  not  in  all, 
modern  countries,  the  rule  which  it  prescribes  has  been 
practically  expounded,  so  as  to  include  them.4  But  the  rule 
in  the  Civil  Law,  in  respect  to  an  extraordinary  responsi- 
bility, was  not  carried  to  the  severe  extent  of  the  English 
Common  Law.  It  did  not  make  the  carrier  liable  for  supe- 
rior or  irresistible  force,  and  it  accounted  robbery  among  the 
cases  of  irresistible  force  ;  and  this  act  of  violence  came 


1  See  ante,  $  67. 

2  2  Kent,  Comm.  597  ;  Woodleif  v.  Curteis,  1  Rol.  Abr.  2  E.  pi.  5 ; 
Coggs  v.  Bernard,  2  Ld.  Raym  R.  918  ;  Dale  v.  Hall,  1  Wils.  R.  281  ; 
Forward  v.  Pittard,  1  T.  R.  27.     It  is  a  general  maxim  in  law,  that  Ac- 
lus  Dei  nemini  facit  injuriam ;  that  is,  the  act  of  God  is  so  treated  by  the 
law  as  to  affect  no  one  injuriously  ;  Broom's  Legal  Max.   109.     The 
maxim  may  be  paraphrased  and  explained  as  follows  :  —  It  would  be  unrea- 
sonable that  those  things,  which  are  inevitable  by  the  act,  which  no  indus- 
try can  avoid,  nor  policy  prevent,  should  be  construed  to  the  prejudice  of 
any  person  in  whom  there  was  no  laches.     1  Rep.  97. 

3  Story  on  Bailm.  §  458. 

4  Domat,  B.  1   tit.  16,  §   1  ;  Id.  §  2;  1  Bell,  Comm.  §  398,  399,  402, 
403  ;  Ersk.  Inst,  B.  3,  tit.  1,  §  28. 


CH.  VI.]          RESPONSIBILITY   OF   COMMON  CARRIERS.  147 

within  the  damnum  fatale  of  the  Civil  Law,  which  exempted 
the  carrier.1  In  the  modern  countries  governed  by  the 
Civil  Law,  (France,  Spain,  Holland,  Louisiana,  Scotland, 
and  the  German  States,)  the  same  rule  is  generally,  if  it  is 
not  invariably,  adhered  to.2  As  is  stated  by  the  learned 
aulhor  of  "  Commentaries  on  the  Law  of  Bailments,"  the 
responsibility  of  common  carriers,  in  the  kingdoms  and 
states  just  mentioned,  may  be  summed  up  in  the  following 
brief  statement :  "  They  are  responsible  for  damage  caused 
by  their  servants,  or  by  others  in  their  employ  and  confi- 
dence, or  under  their  protection  ;  but  they  are  not  responsi- 
ble for  thefts  committed  with  armed  force  or  other  superior 
power ;  and,  of  course,  they  are  exempted  from  losses  by 
mere  accident,  and  inevitable  casualty."  3 

§  149.  Such  also  seems  to  have  been  the  Common  Law  of 
England,  as   understood   in   the  reign  of  Henry  VIII.,  in 


1  Id.  Pothier,  Pand.  Lib.  tit.  9,  n.  1,  7 ;  Jones  on  Bailm.  96;  2  Kent, 
Comm.  598  ;  Dig.  Lib.  4,  tit.  9,  1.  3,  $  1. 

2  Story  on  Bailm.  $  4S8  ;  2  Kent,  Comm.  598  ;  Pardessus,  Droit  Comm. 
P.  2,  tit.  7,  ch.  5,  art.  537-555;  Code  Civil  of  France,  art.  1782,  1786, 
1952;  1  Bell,  Comm.  p.  465,  466;  Abbott  on  Shipp.  P.  3,  ch.  3,  §  3, 
n.  (1) ;  1  Voet  ad  Pand.  lib.  4,  tit.  9  ;  Civil  Code  of  Louisiana,  art.  2722- 
2725. 

3  Story  on  Balm.  §  488,  which  refers  to  the  above  authorities,  and  to 
Merlin  Repertoire,    Voiture,   Voiturier;  2  Kent,  Comm.  598;  Elliott  r. 
Rossell,  10  Johns.  (N.  Y.)  R.  1.     In  Louisiana,  where  the  Civil,  and  not 
the   Common  Law,  prevails,  the  rule  is  less  rigorous  than  the  Common 
Law  rule,  so  that  the  owners  of  steamboats  have  been  held  not  liable  in 
Louisiana  for  a  loss  occasioned  by  fire,  where  proper  diligence  had  been 
used.     But  the  jurisprudence  of  the  States  generally,  contains  a  general 
adoption  of  the  Common,  in  preference  to  the  Civil  Law,  and  such  is  the 
case  in  Alabama.     Jones  v.  Pitcher,  3  Stew.  &  Port.  (Ala.)  R.  176,  per 
Saffold,  J.     It  was  said  by  the  Provincial  Court  of  Appeals  of  Lower 
Canada,  that  the  law  creates  the  exception  force  majeure,  or  irresistible 
force  ;  and  that  this  constitutes  the  only  difference  between  the  law  of 
bailments  in  England  and  in  France.     Hart  v.  Jones,  Stuart,  (Low.  Can- 
ada) R.  589.     See  Spence  v.  Chadwick,  10  Adol.  &  Ell.  (N.  S.)  517. 


148  LAW   OF   CARRIERS.  [CH.  VI. 

which  reign,  says  Sir  William  Jones,  "  it  appears  to  have 
been  generally  holden,  that  a  common  carrier  was  charge- 
able, in  case  of  robbery,  only  when  he  had  travelled  by 
ways  dangerous  for  robbing,  or  driven  by  night,  or  at  any 
inconvenient  hour."  1  But,  says  the  same  author,  in  the  com- 
mercial reign  of  Elizabeth,  it  was  resolved,  upon  the  same 
broad  principles  of  policy  and  convenience  which  apply 
with  respect  to  innholders,  "  that,  if  a  common  carrier  be 
robbed  of  the  goods  delivered  to  him,  he  shall  answer  for  the 
value  of  them."  2  And,  as  before  mentioned,  it  has  long 
been  the  settled  law  of  England,  that  a  common  carrier  is 
responsible  for  all  losses,  except  those  occasioned  by  the  act 
of  God  and  the  king's  enemies? 

§  150.  The  true  ground  of  the  Common  Law  rule  just 
stated,  Sir  William  Jones  has  observed,  is  the  public  employ- 
ment exercised  by  the  carrier,  and  the  danger  of  his  com- 
bining with  robbers,  to  the  infinite  mischief  of  commerce, 
and  extreme  inconvenience  to  society,  and  not  the  reivard, 
which  is  considered  by  Sir  Edward  Coke  as  the  reason.4 
The  policy  of  the  rule  of  extraordinary  responsibility,  as 
before  observed,  was  borrowed  from  the  Roman  law,  but  for 
the  reason  just  assigned,  it  is  applied  with  a  stricter  severity 
in  the  Common  Law,  than  it  was  in  that  law  ;  5  that  is,  the 
Common  Law,  in  fact,  makes  the  common  carrier  an  in- 
surer, against  all  perils  but  those  excepted.6 


1  Jones  on  Bailm.  103,  referring  to  Doct.  &  Stud.  Dial  2,  ch.  38.     See 
also  Noy's  Maxims,  ch.  43,  p.  93;  Abbott  on  Shipp.  P.  3,  ch.  3,  §  3, 
n.  (1)  ;  Story  on  Bailm.  §  489  ;  2  Kent,  Comm.  598. 

2  Jones,  sup.  ;    1  Inst.   89,  a ;  Woodleif  v.  Curteis,  1  Rol.  Abr.  2  ; 
Proprietors  of  Trent  Navigation  v.  Wood,  3  Esp.  R.  127. 

3  See  authorities  referred  to,  ante,  §  148,  note  2. 

4  Jones,  sup. 

5  Story  on  Bailm.  6  490  ;  2  Kent,  Comm.  597,  598. 

6  Forward  v.  Pittard,  4  T.  R.  27  ;  Hyde  v.  Trent  and  Mersey  Naviga- 
tion Co.  5  T.  R.  189. 


CH.  VI.]         RESPONSIBILITY  OF  COMMON   CARRIERS.  149 

§  151.  Lord  Holt,  in  the  case  of  Coggs  v.  Bernard,1  is 
very  explicit  in  stating  the  Common  Law  doctrine  which 
imposes  upon  a  common  carrier  the  extraordinary  liability 
above  mentioned,  and  in  giving  the  reasons  for  it.  "  The 
law  (says  he)  charges  this  person  (the  carrier,)  thus  in- 
trusted to  carry  goods,  against  all  events,  but  acts  of  God 
and  enemies  of  the  king.  For,  though  the  force  be  never 
so  great,  as  if  an  irresistible  multitude  of  people  should  rob 
him,  nevertheless  he  is  chargeable.  And  this  is  a  politic 
establishment,  contrived  by  the  policy  of  the  law  for  the 
safety  of  all  persons,  the  necessity  of  whose  affairs  obliges 
them  to  trust  these  sorts  of  persons,  that  they  may  be  safe 
in  their  dealings.  For  else  these  carriers  might  have  an 
opportunity  of  undoing  all  persons,  that  had  any  dealings 
with  them,  by  combining  with  thieves,  &c.  ;  and  yet  doing 
it  in  such  a  clandestine  manner  as  would  not  be  possible  to 
be  discovered.  And  this  is  the  reason  the  law  is  founded  in 
that  point." 

§  152.  A  learned  English  Judge  in  modern  times  (C.  J. 
Best)  thus  supports  the  views  advanced  by  Lord  Holt: 
"  When  goods  (he  observes)  are  delivered  to  a  carrier,  they 
are  usually  no  longer  under  the  eye  of  the  owner  ;  he  seldom 
follows  or  sends  any  servant  with  them  to  the  place  of  their 
destination.  If  they  should  be  lost  or  injured  by  the  gross- 
est negligence  of  the  carrier  or  his  servants,  or  stolen  by 
them,  or  by  thieves  in  collusion  with  them,  the  owner  would 
be  unable  to  prove  either  of  these  causes  of  loss.  His  wit- 
nesses must  be  the  carrier's  servants ;  and  they,  knowing 
that  they  could  not  be  contradicted,  would  excuse  their 
masters  and  themselves.  To  give  due  security  to  property, 
the  law  has  added  to  that  responsibility  of  a  carrier,  which 
immediately  arises  out  of  his  contract  to  carry  for  a  reward, 
namely,  that  of  taking  all  reasonable  care  of  it,  the  respon- 
sibility of  an  insurer.  From  his  liability  as  an  insurer,  the 

1  Coggs  v.  Bernard,  2  Ld.  Raym.  R.  909  ;  and  Appx. 
13* 


150  LAW   OF   CARRIERS.  [CH.  VI. 

carrier  is  only  to  be  relieved  by  two  things,  both  so  well 
known  to  all  the  country,  when  they  happen,  that  no  person 
would  be  so  rash  as  to  attempt  to  prove,  that  they  had  hap- 
pened when  they  had  not ;  namely,  the  act  of  God,  and  the 
king's  enemies."  l 

§  153.  The  English  books,  it  may  be  added,  abound  with 
strong  cases,  in  which  the  above  salutary  rules  have  been 
enforced ;  and  the  steady  and  firm  support,  which  the 
English  Courts  of  Justice  have  uniformly  and  inflexibly 
given  to  them,  without  yielding  to  the  hardships  of  the  par- 
ticular case,  has  in  our  country  met  with  unqualified  appro- 
bation, and  declared  by  the  best  authority  worthy  of  admi- 
ration.2 There  is  indeed  no  doubt,  but  that  in  this  country, 
the  doctrine  of  the  English  Common  Law,  which  declares 
all  common  carriers,  whether  by  land  or  water,  liable  for 
all  losses  as  insurers,  except  losses  occurring  from  the  two 
inevitable  causes  above  mentioned,  prevails  generally  as  a 
part  of  the  Common  Law  of  the  land.3  Bronson,  J.,  in 
delivering  the  opinion  of  the  Court  in  Hollister  v.  Nowlen,4 
quotes  the  above  opinions  of  Lord  Holt,  and  C.  J.  Best,  with 
the  view  of  showing,  that  the  law  in  relation  to  common 
carriers  is  simple,  well  defined,  and,  what  is  no  less  impor- 
tant, well  understood ;  and  in  its  vindication,  he  says : 


1  Riley  v.  Home,  5  Bing.  R.  217.     And  see  the  Maria  &   Vrow  Jo- 
hanna, 4  Rob.  R.  348.     In  Lane  v.  Cotton,  Lord  Holt  says,  though  one 
may  think  it  a  hard  case,  that  a  poor  carrier  that  is  robbed  on  the  road 
without  any  manner  of  default  in  him,  should  be  answerable  for  all  the 
goods  he  takes,  yet  the  inconvenience  would  be  far  more  intolerable  if  it 
were  not  so,  for  it  would  be  in  his  power  to  combine  with  robbers,  or  to 
pretend  a  robbery  or  some  other  accident,  without  a  possibility  of  remedy 
to  the  party,  and  the  law  will  not  expose  him  to  so  great  a  temptation. 
1  Vin.  Abr.  219  ;  and  cited  by  Nelson,  J.  in  Orange  County  Bank  v. 
Brown,  9  Johns.  (N.  Y.)  R.  114. 

2  2  Kent,  Comm.  602. 

3  Ibid.  609. 

*  Hollister  v.  Nowlen,  19  Wend.  (N.  Y.)  R.  241,  and  Appx.  p.  xviii. 


CH.  VI.]        RESPONSIBILITY  OP  COMMON   CARRIERS.  151 

"  There  is  less  hardship  in  the  case  of  the  carrier  than  has 
sometimes  been  supposed  ;  for,  while  the  law  holds  him  to 
an  extraordinary  degree  of  diligence,  and  treats  him  as  an 
insurer  of  the  property,  it  allows  him,  like  other  insurers, 
to  demand  a  premium  proportioned  to  the  hazards  of  his 
employment.  The  rule  is  founded  upon  a  great  principle  of 
public  policy  ;  it  has  been  approved  by  many  generations  of 
wise  men ;  and  if  the  Courts  were  now  at  liberty  to  make, 
instead  of  declaring,  the  law,  it  may  well  be  questioned, 
whether  they  could  devise  a  system  which,  on  the  whole, 
would  operate  more  beneficially.  I  feel  the  more  confident 
in  this  remark  from  the  fact,  that  in  Great  Britain,  after  the 
Courts  had  been  perplexed  for  thirty  years  with  various 
modifications  of  the  law  in  relation  to  carriers,  and  when 
they  had  wandered  too  far  to  retrace  their  steps,  the  legisla- 
ture finally  interfered,  and  restored  the  salutary  rule  of  the 
Common  Law."  1  Then  there  is  no  hardship  in  enforcing 


1  The  legislative  interference  to  which  the  learned  Judge  refers,  was  in 
respect  to  limiting  the  carrier's  responsibility  by  a  general  notice,  as  to 
which  see  post,  Chap.  VII.  And  see  the  opinion  of  the  same  learned 
Judge  in  Fairchild  v.  Slocum,  19  Wend.  (N.  Y.)  R.  331,  and  in  Cole  v. 
Goodwin,  Ib.  251  ;  and  opinion  of  Cowen,  J.,  in  21  Ib.  198.  The  Su- 
preme Court  of  Connecticut,  in  Crosby  v.  Fitch,  (12  Conn.  R.  419,)  says; 
"  We  are  not  dissatisfied  with  the  reasons  which  originated  the  Common 
Law  responsibility  of  common  carriers,  and  believe  they  apply  with  pecu- 
liar force  at  this  day,  and  in  this  country."  And  the  doctrine  was  sternly 
enforced  in  Connecticut,  in  the  case  of  Hale  v.  New  Jersey  Steam  Navi- 
gation Company,  15  Conn.  R.  539.  In  Roberts  v.  Turner,  Spencer,  J. 
said,  the  carrier  is  responsible  as  an  insurer  of  the  goods  "  to  prevent 
combinations,  chicanery,  and  fraud."  12  Johns.  (N.  Y.)  R.  232.  Ser- 
geant, J.,  in  giving  the  opinion  of  the  Court  in  Pennsylvania,  says,  the 
rule  of  the  Common  Law  should  not  be  relaxed.  Harrington  v.  M'Shane, 
2  Watts  (Penn.)  R.  443.  It  is  a  principle  (that  the  carrier  is  an  insurer) 
say  the  Supreme  Court  of  Pennsylvania,  "  of  extraordinary  responsibility 
which  has  stood  the  test  of  experience,  and  which  we  are  unwilling  to  see 
frittered  away."  Eagle  v.  White,  6  Whart.  (Penn.)  R.  517.  In  a  late 
case  in  Massachusetts,  Hubbard,  J.,  in  giving  the  opinion  of  the  Court, 
remarked  :  —  "  This  law  (the  law  making  a  common  carrier  an  insurer)  is 
enforced  on  principles  of  public  policy,  to  prevent  fraud  and  collusion  with 


152  LAW    OF    CARRIERS.  [CH.  VI. 

any  contract  which  is  voluntarily  made  on  a  valuable  con- 
sideration ;  and  the  assumption  of  the  extraordinary  respon- 
sibility by  the  carrier  is  in  order  that  he  may  receive  the 
freight.  "  In  success,  he  may  rejoice  in  the  fortunate  results 
of  his  adventurous  and  hazardous  undertaking ;  in  failure, 
he  cannot  complain  that  he  is  visited  with  the  necessary  con- 
sequence of  adventure  —  loss."  l 

§  154.  FIRST,  then,  as  to  what  is  meant  by  the  "  act  of 
God."  Sir  William  Jones  considers,  that  an  expression 
more  decent  and  proper  than  this,  and  also  one  more  popular 
and  perspicuous,  is  "  inevitable  accident."  2  But  Lord  Mans- 
field, in  Forward  v.  Pittard,3  considers  the  carrier  liable  for 


thieves  and  robbers  ;  the  owner  of  the  goods,  not  being  generally  in  a  situ- 
ation to  oversee  and  protect  his  property,  having  placed  it  in  the  possession 
and  under  the  protection  of  the  carrier.  And  the  pay  of  carriers  is  gradu- 
ated upon  such  liability."  Thomas  v.  Boston  and  Providence  Railroad 
Corp.  10  Met.  (Mass.)  R.  476.  See  also  Orange  County  Bank  v.  Brown, 
9  Wend.  (N.  Y.)  R.  104;  De  Mott  v.  Laraway,  14  Ib.  225;  Atwood  v. 
Reliance  Transportation  Co.  9  Watts  (Penn.)  R.  87;  Sheldon  v.  Robin- 
son, 7  N.  Hamp.  R.  157  ;  Hastings  «.  Pepper,  11  Pick.  (Mass.)  R.  42  ; 
Moses  v.  Norris,  4  N.  Hamp  R.  306  ;  Kemp  v.  Coughtry,  11  Johns.  (N. 
Y.)  R.  109  ;  Spencer  t>.  Daggett,  2  Vt.  R.  92  ;  Allen  v.  Sewall,  2  Wend. 
(N.  Y.)  R.  327  ;  Boyce  v.  Anderson,  2  Peters  (U.  S.)  R.  150;  Back- 
house  v.  Snead,  1  Mur.  (N.  C.)  R.  173  ;  Walpole  v.  Bridges,  5  Blackf. 
(Ind.)  R.  173 ;  Pomeroy  v.  Donaldson,  5  Missou.  R.  36  ;  Swindler  v. 
Hilliatd,  2  Rich.  (S.  C.)  R.  286.  Per  Richardson,  J.,  in  delivering  the 
opinion  of  the  Court,  in  Reaves  v.  Waterman,  2  Speer  (S.  C.)  R.  206  :  — 
"It  is  in  vain  to  arrange  the  principles  that  impose  such  strict  accounta- 
bility upon  common  carriers."  Again,  "  The  strict  accountability  of  com- 
mon carriers  has  been  found  necessary  in  all  commercial  communities,  and 
has  been  the  same  for  centuries  ;  I  might  add,  a  successful  carrying  trade 
depends  upon  it."  Ibid.  And  see  also  the  opinion  of  Richardson,  J.,  in 
Steamboat  Co.  v.  Bason,  Harp.  (S.  C.)  R.  264;  and  the  opinion  of  Nel- 
son, J.,  in  New  Jersey  Steamboat  Navigation  Company  v.  Merchants 
Bank,  Dec.  Term  Supreme  Court  U.  S.  1847,  Appx.  p.  liv.  ;  McHenry 
v.  Railroad  Co.  4  Harring.  (Del.)  R.  448. 

1  See  opinion  of  O'Neall,  J.,  in  Smyrl  v.  Niolen,  2  Bail.  (S.  C.)  R.  422. 

2  Jones  on  Bailm.  104,  105. 

3  Forward  v.  Pittard,  1  T.  R.  33. 


CH.  VI.]          RESPONSIBILITY   OF   COMMON   CARRIERS.  153 

"  inevitable  accident ;  "  so  that  it  seems,  that,  according  to 
the  view  of  that  learned  Judge,  the  words  "  inevitable  acci- 
dent," which  are  preferred  by  some  to  the  words  "  act  of 
God,"  because  more  reverent,  are  not  adequate  to  express 
the  ground  of  a  common  carrier's  excuse  ;  for  accidents 
arising  from  human  force  or  fraud,  are  sometimes  "  inevita- 
ble." l  Again,  in  another  case,  Lord  Mansfield  says,  the 
"  act  of  God"  is  "  natural  necessity,"  and  is  distinct  from 
"  inevitable  accident ;  "  and  as  examples,  he  mentions  "  winds 
and  storms  "  which  arise  from  natural  causes,2  and  a  "  sud- 
den gust  of  wind."  3  The  "  act  of  God,"  therefore,  in  its 
legal  sense,  and  as  applied  to  common  carriers,  means  some- 
thing in  opposition  to  the  act  of  man,  for  every  thing  is  the 
"  act  of  God,"  that  happens  by  his  permission,  every  thing 
by  his  knowledge.4  Accident  produced  by  any  physical 
cause,  which  is  irresistible  ;  such  as  a  loss  by  lightning  or 
storms,  by  the  perils  of  the  sea,  by  an  inundation  or  earth- 
quake, or  by  sudden  death  or  illness,  is  mentioned  by  a 
learned  author  as  the  "  act  of  God."  5  To  prevent  litigation, 
the  law  presumes  against  a  carrier  in  every  case,  except 
such  act  as  could  not  happen  by  the  intervention  of  human 
means.6 


1  See  opinion  of  Cowen,  J.,  in  M'Arthur  «.  Sears,  21  Wend.  (N.  Y.) 
R.  192. 

2  Proprietors  of  Trent  and  Mersey  Navigation  Co.  v.  Wood.  4  Doug. 
R.  280;  3  Esp.  R.  131. 

3  Amies  v.  Stevens,  1  Strange,  R.  128. 

4  Forward  v.  Pittard,  ub.  sup. 

5  Story  on  Bailm.  $  25,  §  511.     "  By  the  act  of  God,"  say  the  Superior 
Court  of  Errors  and  Appeals  of  Delaware,  "is  meant  such  inevitable 
accident  as  cannot  be  prevented  by  human  care,  skill,  or  foresight ;  but, 
results  from  natural  causes,  such  as  lightning  and  tempests,  floods  and 
inundation."     McHenry  v.  Railroad  Co.  4  Harring.  (Del.)  R.  448. 

6  Jeremy  on  Carr.  57.     In  the  books,  under  the  head  of  "  waste,"  an 
analogous  distinction  is  to  be  found;  if  a  house  fall  down  by  tempest,  or 
be  burned  by  lightning,  it  is  no  waste,  but  burning  by  negligence  or  mis- 
chance is  waste.     Co.  Litt.  53,  a,  b. 


154  LAW    OF    CARRIERS.  [CH.  VI. 

§  155.  The  term  vis  major  (superior  force)  is  used  in  the 
Civil  Law  in  the  same  Avay  that  the  words  "  act  of  God  " 
are  used  in  the  Common  Law,1  and  so  also  is  the  term  casus 
fortuitus?  The  latter  term  might  perhaps  have  more  pro- 
perly been  used  by  the  Court  in  Colt  v.  M'Mechen,3  in 
which  the  term  "  act  of  God "  was  applied  to  a  sudden 
failure  of  the  wind,  whereby  the  vessel  tacking  was  unable 
to  change  her  tack,  and  so  went  ashore.  "  The  sudden 
gust,  in  the  case  of  the  hoyman,"  said  Spencer,  J.,  alluding 
to  the  case  of  Amies  v.  Stevens,4  "  and  the  sudden  and  en- 
tire failure  of  the  wind  sufficient  to  enable  the  vessel  to  beat, 
are  equally  to  be  considered  the  acts  of  God.  He  caused 
the  gust  to  blow  in  the  one  case,  and  in  the  other  the  wind 
was  stayed  by  him.5 


1  Poth.  Pret.  a  Usage,  n.  48,  60;  2  Bouv.  Law  Diet.  612;  M'Arthur 
v.  Sears,  ub.  sup. 

2  3  Kent,  Comm.  217  ;  Abbott  on  Shipp.  ch.  4,  §  1.     That  the  "act  of 
God  "  means  natural  accidents,  such  as  lightning,  earthquake,  and  tempest, 
and  not  accidents  arising  from  the  fault  or  negligence  of  man  ;  Jeremy  on 
Carr.  56 ;  Campbell  v.  Morse,  Harp.  (S.  C.)  R.  468  ;  Harpell  v.  Owens, 
1  Dev.  &  Bat.  (N.  C.)  R.  273  ;  Robertson  v.  Kennedy,  2  Dana  (Ken.) 
R.  430  ;  Gordon  v.  Buchanan,  5  Yerg.  (Tenn.)  R.  32  ;  Turney  v.  Wilson, 
7  Ibid.  340 ;  Sprowl  v.  Kellar,  4  S.  &  Port.  (Ala.)  R.  382. 

3  Colt  v.  M'Mechen,  6  Johns.  (N.  Y.)  R.  100. 

4  Amies  v.  Stevens,  ub.  sup. 

5  Mr.  Wallace,  in  his  note  to  Coggs  v.  Bernard,  (1  Smith's  Lead.  Cases, 
p.  233,  of  Am.  Ed.  1847,)  in  commenting  upon  the  above  case  of  Colt  v. 
M'Mechen,  considers,  that  the  opinion  of  Mr.  J.  Spencer  may  be  very 
fair  divinity  ;  and  that  upon  such  a  theological  theory  of  causation,  every 
thing  may  be  the  act  of  God.     He  then  proceeds  further  to  observe  :  — "It 
is  the  most  extraordinary  version  of  the  principle  on  which  a  common 
carrier  is  discharged  from  liability  that  the  books  contain,  and  upon  the 
authority  of  later  cases,  may  confidently  be  pronounced  to  be  wrong. 
Kent,  Ch.  J.,  in  fact  substantially  dissented  ;  for  while  he  assented  to  the 
theology  of  Spencer,  J.,  that  the  stopping  of  the  wind  was  the  act  of  God, 
he  thought '  there  was  a  degree  of  negligence  imputable  to  the  master,  in 
sailing  so  near  the  shore  under  a  light  variable  wind,  that  a  failure,  in 
coming  about,  would  cast  him  aground.     He  ought  to  have  exercised 
more  caution,  and  guarded  against  such  a  probable  event,'  &c. ;  in  other 


CH.  VI.]          RESPONSIBILITY   OP   COMMON   CARRIERS.  155 

§  156.  A  loss  by  fire,  unless  by  lightning,  is  a  loss  not  in 
opposition  to  the  act  of  man,  and  therefore  the  general  law 
is  clear,  that  a  common  carrier  is  in  all  common  cases  an 
insurer  against  such  fire.1  In  an  action  against  a  common 
carrier  for  not  safely  carrying  and  delivering  goods,  the 
goods,  which  were  hops,  were  burnt  whilst  in  a  booth, 
under  the  defendant's  care ;  and  although  the  fire  began  a 
hundred  yards  distant,  and  without  any  negligence  what- 
ever being  proved  in  the  defendant,  it  was  held,  that  there 
were  certain  events  for  which  the  carrier  is  liable,  independ- 
ent of  his  contract  ;  a  further  degree  of  responsibility  by  the 
custom  of  the  realm  ;  for  by  the  Common  Law,  he  is  in  the 


words,  he  thought  it  not  such  an  act  of  God  as  takes  away  the  legal  infer- 
ence of  negligence.  The  principle  so  clearly  and  carefully  ascertained  in 
M'Arthur  v.  Sears,  (21  Wend.  R.  190,)  controls  both  this  case,  and  Wil- 
liams v.  Grant,  (1  Conn.  R.  487.)  The  principle,  that  all  human  agency 
is  to  be  excluded  from  creating,  or  entering  into,  the  cause  of  mischief,  in 
order  that  it  may  be  deemed  the  act  of  God,  shuts  out  those  cases  where 
the  natural  object  in  question  is  made  a  cause  of  mischief  solely  by  the  act 
of  the  captain  in  bringing  his  vessel  into  that  particular  position,  where 
alone  that  natural  object  could  cause  the  mischief;  in  the  two  cases  in 
question,  it  was  the  act  of  the  captain  that  imparted  to  the  natural  objects 
all  the  mischievous  qualities  they  possessed  ;  for  rocks,  shores,  currents, 
and  dying  breezes,  are  not  by  their  own  nature  and  inherently,  agents  of 
mischief,  and  causes  of  danger,  as  tempests,  lightning,  &c.  are  ;  the  dan- 
ger, therefore,  sprang  from  human  agency.  It  may  be  thought,  that  in 
principle,  the  distinction  does  not  amount  to  much,  for  that  the  carrier  is 
always  liable  for  his  own  negligence,  and  it  is  easy  to  see  that  such  acci- 
dents can  never  prove  fatal  without  negligence  on  his  part.  But  practi- 
cally the  distinction  is  of  the  first  importance,  because,  it  affects  the  burden 
of  proof;  and  the  confusion  of  the  distinction  tends  to  thwart  the  wise 
provision  of  the  Common  Law,  which  will  not  allow  the  carrier  to  throw 
upon  the  employer  the  burden  of  proving  or  inferring  negligence  or  defect- 
ive means  in  the  carrier,  until  he  has  shown  the  intervention  of  such  an 
extraordinary,  violent,  and  destructive  agent,  as  by  its  very  nature  raises 
a  presumption  that  no  human  means  could  resist  its  effect.  Upon  the 
whole,  it  would  seem  that  the  act  of  God  signifies  the  extraordinary  vio- 
lence of  nature." 

1  Per  Dallas,  C.  J.,  in  Thorogood  v.  Marsh,  1  Gow.  R.  105. 


156  LAW    OF   CARRIERS.  [CH.  VI. 

nature  of  an  insurer  ;  and  as  the  fire  arose  from  some  act  of 
man,  the  carrier  is  liable  in  this  case.  The  law  presumes 
against  the  carrier,  unless  he  shows  the  injury  could  not 
happen  by  the  intervention  of  man.1  Thus,  in  this  case, 
Lord  Mansfield  delivered  the  unanimous  opinion  of  the 
King's  Bench  in  favor,  it  has  been  asserted,  "  of  a  great 
principle  of  public  policy,  which  has  proved  to  be  of  emi- 
nent value  to  the  morals  and  commerce  of  the  nation  in  suc- 
ceeding generations."  2 

§  157.  Therefore,  as  carriers  by  water,  whether  inland  or 
foreign,  are  liable  as  common  carriers  in  all  the  strictness 
and  extent  of  the  Common  Law  rule,3  the  owners  of  carrier 
vessels  must  be  answerable  for  a  loss  by  fire  proceeding  from 
any  other  cause  than  that  of  lightning,  and  whether  origi- 
nally commencing  in  their  own  vessel,  or,  according  to  the 
above  case  of  Forward  v.  Pitlard,  communicated  to  it  from 
another.4  As  was  said  by  Richardson,  J.,  in  Steamboat 
Company  v.  Bason,5  (exempli  gratia,')  how  easy  would  it 
be  to  rob  a  steamboat,  and  then  raise  the  appearance  of  an 
accidental  loss  by  fire.  The  Court  then  in  a  case  in  Mis- 
sissippi, had  all  sufficient  ground  for  deciding,  as  they  did, 
that  a  loss  occasioned  by  accidental  fire,  though  not  arising 
from  negligence  or  carelessness,  was  not  within  the  excep- 
tion of  a  loss  caused  by  the  "  act  of  God."  6 

1  Forward  v.  Pittard,  1  T.  R.  27.     In  Hyde  v.  Trent  and  Mersey  Navi- 
gation Company,  (5  T.  R.  389,)  common  carriers  from  A.  to  B.  charged 
and  received  cartage  of  goods  to  the  consignee's  house  at  B.,  from  aware- 
house  there,  where  they  usually  unloaded,  but  which  did  not  belong  to 
them.     It  was  held,  that  they  must  answer  for  the  goods  if  destroyed  in 
the  warehouse  by  an  accidental  fire. 

2  2  Kent,  Comm.  602. 

3  Ante,  §  79,  80,  87,  88. 

4  Abbott  on  Shipp.  P.  4,  ch.  6,  p.  389  ;  Parker  v.  Flagg,  13  Shep. 
(Me.)  R.  181. 

5  Steamboat  Company  v.  Bason,  Harp.  (S.  C.)  R.  264. 

6  Gilmore  v.  Carman,  1  Sme.  &  Marsh.  (Mississip.)  R.  279;  and  see 
Harrington  v.  M'Shane,  2  Watts  (Penn.)  R.  443.     The  Supreme  Court  of 


OH.  VI.]         RESPONSIBILITY   OF   COMMON   CARRIERS.  157 

§  158.  It  was,  however,  contended  in  the  Supreme  Court 
of  Connecticut,  in  the  case  of  Hale  v.  New  Jersey  Steam. 
Navigation  Company,  that  there  was  no  case  where  the 
liability  of  the  carrier  is  extended  to  fire  on  the  high  seas. 
But  if  the  principle  governs  such  cases,  then  the  Court 
thought,  it  is  to  be  supposed,  the  reason  such  cases  are  not  to 
be  found,  is,  that  they  have  not  occurred,  or  were  not  con- 
tested ;  and  if  the  carrier  is  subjected  for  the  loss  of  goods 
burnt  on  land,  where  he  was  in  no  fault,  the  Court  saw  no 
reason  for  exempting  the  carrier  at  sea,  under  like  circum- 
stances. In  this  case,  the  plaintiff  claimed,  that  on  the 
10th  of  January,  1840,  the  defendants,  being  owners  of  the 
steamboat  Lexington,  which  had  for  several  years  been  one 
of  the  line  of  boats  transporting  goods  for  hire  from  New 
York  to  Stonington  and  Providence,  for  all  persons  who 
chose  to  employ  them,  undertook  to  transport  two  carriages 
belonging  to  the  plaintiff,  to  Boston,  or.  to  Providence,  on 
the  way  to  Boston  :  that  on  the  night  o£  the  10th  of  January, 
said  boat,  on  her  passage  from  New  York,  in  Long  Island 
Sound,  near  Huntingdon,  was  destroyed  by  firer  together 
with  said  carriages ;  and  the  plaintiff  claimed  to  recover  of 
the  defendants,  as  common  carriers,  for  the  value  of  the 
carriages,  upon  the  ground  that  they  were  not  destroyed  by 
the  act  of  God  or  the  public  enemy.  He  was  sustained  in 
this  ground  by  the  Court,  who  held  the  defendants  liable.1 


Alabama  have  ruled,  on  two  occasions,  that  acts  of  God,  which  consti- 
tute a  legal  excuse  for  the  loss  of,  or  damage  to,  goods,  by  the  sinking  or 
destruction  of  a  steamboat,  must  appear  to  be  the  immediate,  not  remote 
cause  of  the  loss  or  damage  ;  and  must  be  beyond  the  prevention  or  con- 
trol of  human  prudence.  Jones  v.  Pitcher,  3  Stew.  &  Port.  (Ala.)  R. 
135  ;  Sprowl  v.  Kellar,  4  Ib.  382. 

1  Hale  ».  New  Jersey  Steam  Navigation  Co.  15  Conn.  R.  539.  In  the 
case  of  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank, 
(Dec.  Term  Sup.  Co.  TJ.  S.  1847,  Appx.)  which  grew  out  of  the  loss 
of  property  by  the  burning  of  the  same  steam  vessel,  the  owners  of  the 
vessel  were  protected  by  a  special  contract,  which  exempted  them  from 
liability  except  for  negligence. 
14 


158  LAW  OF  CARRIERS.  [CH.  VI. 

§  159.  In  Patton  v.  Magrath,  it  was  argued,  that  the 
navigation  of  steamboats  being  caused  by  fire,  made  them 
so  liable  to  destruction  by  that  element,  that  this  danger 
ought  to  be  classed  as  the  act  of  God.  But  Richardson,  J., 
in  speaking  for  the  Court,  said,  in  reply  to  this  argument, 
that  "the  loss  by  fire,  which  occurring  in  another  boat,  ren- 
ders the  owners  liable,  will,  in  like  manner,  make  liable  the 
owners  of  a  steamboat  propelled  by  fire."  But  he  added, 
that  the  owners  would  not  be  liable  if  by  a  public  notice 
they  declared  they  would  not  be  liable  in  such  an  event ;  or 
if  the  bill  of  lading  expressed,  that  they  would  not  be  liable 
for  accidents  by  fire.1  Thus,  in  other  words,  saying,  that 
the  owners  might  divest  themselves  of  their  responsibility  in 
such  an  event,  by  special  contract,  a  subject  which  will  re- 
ceive attention  in  a  subsequent  chapter.  In  a  later  case,  in 
South  Carolina,  which  was  an  action  for  the  loss  by  fire  of 
a  number  of  bales  of  cotton  on  board  the  defendants'  boat, 
the  Court,  in  giving  their  opinion,  said,  that  if  there  is 
neither  usage  nor  special  contract  to  protect  or  exempt  the 
defendants  from  the  general  liability  of  common  carriers  for 
such  losses,  then  the  plaintifPs  case  would  be  too  plain  for 
a  difference  of  opinion.  And  the  Court  added,  that,  upon 
the  well  established  principles  of  the  law  of  common  car- 
riers, the  defendants  were  liable  for  all  such  losses  by  fire.2 

§  160.  The  freezing-  of  our  canals,  rivers  and  arms  of 
the  sea,  on  the  other  hand,  is  not  an  interposition  of  human 
agency,  but  is  an  interposition  of  the  vis  major,  and  such  an 
one  as  excuses  a  loss  arising  from  the  delay  of  a  common 
carrier  by  water.  But  the  carrier  is  nevertheless  bound  to 
exercise  ordinary  forecast  in  anticipating  the  obstruction  ; 
must  use  the  proper  means  to  overcome  it ;  exercise  due 


1  Patton  v-  Magrath,  Dud.  (S.  C.)  R.  159,  recognized  and  approved  in 
Swindler  v.  Hilliard,  2  Rich.  (S.  C.)  R.  286. 

2  Singleton  v.  Hilliard,  (Co.  of  Appeals  of  So.  Car.  1847,)  1  Strob. 
(S.  C.)  R.  203. 


CH.  VI.]        RESPONSIBILITY  OF   COMMON   CARRIERS.  159 

diligence  to  accomplish  the  transportation  he  has  undertaken 
as  soon  as  the  obstruction  ceases  to  operate  ;  and,  in  the 
mean  time,  must  not  be  guilty  of  negligence  in  the  care  of 
the  property ; 1  nor  deviate  from  the  course  of  the  voyage 
prescribed,  for  the  reason  of  the  obstruction  by  ice.2  The 
owners  of  a  vessel  lying  in  the  river  undertook  to  carry 
goods  from  Norwich  to  New  London,  and  in  the  passage  the 
river  was  obstructed  by  ice,  which  was  formed  during  the 
night  next  preceding  the  sailing  of  the  vessel  from  Norwich, 
whereby  the  vessel  was  injured  and  became  leaky,  and  the 
goods  were  spoiled.  It  was  held,  that  the  owners  of  the 
vessel  were  liable  as  common  carriers.  But,  in  this  case 
negligence  and  insufficiency  of  the  vessel  were  charged  upon 
the  defendants,  and  the  verdict  of  the  jury  was  for  the 
plaintiff,  though  they  were  instructed  by  the  Court,  that  the 
defendants  were  not  liable  as  common  carriers  for  injuries 
arising  by  the  act  of  God.3 

§  161.  In  a  case  against  a  carrier  for  an  injury  done  to  a 
cargo  by  steam,  it  appeared  that  the  steam  escaped  through 
a  crack  in  the  steam  boiler,  occasioned  by  the  frost  (the 
vis  major]  ;  and  the  Court  held,  that  at  that  season  of  the 
year,  in  which  such  injuries  by  frost  are  likely  to  occur,  it  is 
gross  negligence  in  the  carrier  to  fill  up  his  boiler  over  night, 
without  keeping  up  a  suitable  fire  to  prevent  such  accidents.4 
Here  also  was  the  "  intervention  of  man,"  viz.  the  miscon- 
duct and  negligence  of  the  carrier. 

§  162.  The  defendant  allowed   his  wagon,  in  which  he 


1  Bowman  v.  Teall,  23  Wend.  (N.  Y.)  R.  306  ;  Parsons  v.  Hardy, 
14  Ib.  215  ;  Harris  ».  Rand,  4  N.  Hamp.  259  ;  and  see  Wallace  v.  Vigus, 
4  Blackf.  (Ind.)  R.  260. 

8  Hand  v.  Baynes,  4  Whart.  (Penn.)  R.  204  ;  Crosby  v.  Fitch,  12  Conn. 
R.  410. 

3  Richards  «.  Gilbert,  5  Day  (Conn.)  R.  415. 

4  Siordet  v.  Hall,  4  Bing.  R.  607. 


160  LAW   OF    CARRIERS.  [CH.  VI 

was  carrying  goods,  to  stick  fast  in  a  fording  creek,  and  the 
water  suddenly  rising,  damaged  the  goods  ;  and  he  was  held 
liable  for  the  damage.1  The  damage  was  from  the  act  and 
negligence  of  man  ;  and  if  a  common  carrier"  goes  by  ways 
that  be  dangerous,  he  shall  stand  charged  for  his  misde- 
meanor ;  "  and  so,  "  if  he  overcharge  a  horse,  whereby  he 
falleth  into  the  water,  or  otherwise  so  that  his  stuff  is  hurt 
or  impaired,  then  he  shall  stand  charged  for  his  misdemean- 
or ;  "  and  so,  "  if  he  drive  by  night,  or  in  other  inconvenient 
time."  2 

§  163.  If  the  goods  have  been  wetted,  destroyed,  or  swept 
away  by  rains  and  floods,  the  circumstances  attendant 
thereupon  must  be  regarded,  in  order  to  determine  whether 
it  has  been  occasioned  by  the  act  of  God,  or  the  act,  mis- 
conduct or  negligence  of  man.  A  common  carrier  undertook 
to  transport,  both  by  land  and  by  water,  a  quantity  of  flour 
from  Baltimore  to  Philadelphia,  and  at  an  intermediate  part 
of  the  route  the  flour  was  put  upon  an  elevated  place  on  a 
wharf,  wholly  uncovered  and  unprotected  from  the  weather ; 
and  while  it  lay  there  a  freshet  arose,  by  which  a  great  part 
of  the  flour  thus  exposed,  was  swept  off.  In  an  action  to 
recover  damages,  the  defendants  insisted,  that  the  loss  was 
by  the  act  of  God,  and  urged  in  their  defence,  their  inability 
to  procure  warehouse-room  for  the  storage  of  the  flour, 
owing  to  the  great  quantity  of  commodities  transported 
along  the  line,  in  consequence  of  the  coasting  trade  being 
cut  off  by  the  public  enemy.  But  the  Court  held  the  defend- 
ants liable  for  the  loss  so  sustained,  because  they  knew  the 
state  of  public  affairs,  and  it  was  in  consequence  of  which  the 
line  of  communication  in  question  was  established,  and  from 
the  same  cause  it  became  unusually  crowded  and  profitable  ; 


1  Campbell  v.  Morse,  Harp.  (S.  C.)  R.  468. 

2  D.oct.  &  Stud.  Dial.  2,  ch.  38  ;  Noy's  Maxims,  ch.  43  ;  Boyle  t>. 
M'Laughlin,  4  H.  &  Johns.  (Md.)  R.  291. 


CH.  VI.]  RESPONSIBILITY   OF   COMMON   CARRIERS.  161 

because  the  defendants  knew,  or  were  bound  to  know,  the 
extent  and  capacity  of  their  means  of  transportation,  and 
because  the  sufficient  capacity  of  their  warehouses  at  the 
point  where  the  loss  happened,  they  undertook  for  and  con- 
sequently insured.1 

§  164.  A  wagoner  undertook  to  carry  and  deliver  certain 
packages  of  merchandise  which  he  received  in  Cincinnati,  to 
a  person  in  Crawfordsville,  in  Indiana,  and  in  an  action 
against  him  for  an  injury  done  to  the  goods,  it  was  proved, 
that  he  left  the  direct  and  principal  road  from  the  one  place 
to  the  other,  taking  a  more  circuitous  one  which  led  past  his 
own  dwelling  ;  that  after  the  defendant  had  so  deviated  from 
the  usual  route,  he  drove  on  to  a  bridge  which  gave  way, 
thereby  upsetting  the  wagon,  and  throwing  the  goods  into 
the  water,  whereby  they  were  injured.  It  also  appeared  in 
evidence,  that  the  bridge  was  considered  safe  before  the 
accident ;  that  the  road  taken  by  the  defendant  was  pre- 
ferred by  some  to  the  more  direct  and  more  generally  trav- 
elled way  to  Crawfordsville,  but  wagoners  never  used  it. 
The  Court  held  the  carrier  responsible  for  the  damage,  un- 
less he  stood  excused  on  the  score  of  inevitable  accident ; 
which,  the  Court  said,  was  so  far  from  being  the  case,  that 
the  accident  happened  in  consequence  of  his  own  improper 
conduct ;  and  a  desire  to  go  to  his  own  house,  which  was 
his  inducement  to  deviate,  was  no  legal  excuse  for  his  doing 
so.2  So,  if  a  carrier  takes  the  most  dangerous  of  two  modes 
of  conveyance  around  a  fall,  he  does  so  at  his  own  risk.3 

§  165.  Ferrymen,  if  they  venture  out  at  an  improper  sea- 
son, are  most  unquestionably  liable ;  but  if  a  sudden  gust 
of  wind  or  storm  arise,  and  an  injury  is  sustained,  after  the 


1  Boyle  v.  M'Laughlin,  4  H.  &  Johns.  (Md.)  R.  291. 
a  Powers  v.  Davenport,  7  Blackf.  (Ind.)  R.  497  ;  and  see  Davis  v. 
Garrett,  6  Bing.  R.  716. 

3  Lawrence  v.  M'Gregor,  Wright,  (Ohio)  R.  193. 
14* 


162  LAW   OF   CARRIERS.  [CH.  VI. 

ferryman  is  under  way,  then  it  is  clear  the  law  will  not 
charge  him ;  because  man  cannot  always  foresee  storms  and 
tempests,  and  guard  against  them.1  The  defendant  kept  a 
ferry  across  the  Missouri  river,  and  the  plaintiff  applied  to 
cross  the  river.  The  ferry  boat  was  brought  to  the  bank, 
and  fastened  by  a  chain  to  a  stake  driven  into  the  bank,  and 
the  driver  of  the  plaintiffs  wagon  was  directed  to  drive  into 
the  boat.  The  horses  entered  and  drew  in  the  fore  wheels 
of  the  wagon ;  but  when  the  hind  wheels  struck  the  boat, 
the  stake  was  broken,  and  the  boat  receded  from  the  shore, 
the  hind  wheels  of  the  wagon  being  out  over  the  end  of  the 
boat.  The  driver  being  urged  thereto,  by  several  persons 
on  the  shore,  dismounted  and  cut  his  fore  horses  loose  from 
the  wagon,  and  backed  the  wagon  out  of  the  boat  into  the 
water.  One  of  the  hind  horses  was  drowned,  and  it  was 
held,  the  loss  was  not  occasioned  by  the  act  of  God.  In 
this  case,  the  jury  found,  that,  by  the  -negligence  of  the  fer- 
ryman, he  had  caused  the  accident  to  happen,  and  that  he 
thereby  produced  the  state  of  alarm  in  which  the  driver  im- 
prudently backed  his  wagon  into  the  river.  The  Court  said, 
that  neither  the  plaintiff,  nor  the  driver  of  his  wagon,  could 
be  supposed  to  have  the  same  presence  of  mind  on  such  an 
occasion  as  the  ferryman.2 

§  166.  Carriers  by  water  have,  from  a  very  early  period, 
been  in  the  habit  of  making  special  acceptances  of  goods  to 
be  carried  for  hire,  and  guarding  themselves  by  the  bill  of 


1  Cook  v.  Gourdin,  2  N.  &  McCord  (S.  C.)  R.  19. 

2  Pomeroy  v.  Donaldson,  5  Missou.  R.  36.     In  the  Year  Books  (22  Ass. 
41,)  there  is  the  case  of  an  action  against  a  waterman,  for  overloading  his 
boat,  so  that  the  plaintiff's  horse  was  drowned.     It  was  agreed,  "  that  if 
he  had  not  surcharged   the  boat,  although  the  horse  was  drowned,  no 
action  lies,  notwithstanding  the  assumpsit ;  but  if  he  surcharged  the  boat, 
otherwise  ;  for  there  is  default  and  negligence  in  the  party."     The  Court 
said,  "  it  seemed,  that  you  trespassed  when  you  surcharged  the  boat,  by 
which  the  horse  perished."     1  Roll.  Abr.  10,  pi.  18. 


CH.  VI.]         RESPONSIBILITY  OP   COMMON   CARRIERS.  163 

lading,  or  contract  of  affreightment,  from  losses  occasioned 
by  "  perils  of  the  seas."  These  words  certainly  denote  the 
natural  accidents  peculiar  to  that  element,  and  from  losses 
thereby  occasioned,  the  common  carrier  by  water  is,  and 
always  has  been,  exempt,  by  the  Common  Law.1  As  if, 
for  example,  a  carrier  vessel  is  taken  in  tow  by  a  ship  of 
war,  and  in  order  to  keep  up  she  is  obliged  to  have  recourse 
to  an  extraordinary  press  of  sail  in  a  gale  of  wind,  and 
thereby  her  cargo  is  injured,  it  is  a  loss  by  the  perils  of  the 
sea.2  But  what  is  the  precise  import  of  this  phrase  is  not 
perhaps  exactly  settled.  It  has  been  supposed,  that  by  these 
words,  are  properly  meant  no  other  than  inevitable  perils  or 
accidents  upon  that  element,  and  that  they  are  but  commen- 
surate with  the  words  "  acts  of  God."  3  But  notwithstanding 
this  opinion,  the  words  "  perils  of  the  sea  "  have  been  held 
to  extend  to  events  not  attributable  to  natural  causes.4 
They  have  been  held  to  include  losses  by  pirates,5  and  also 
losses  by  collision  of  two  vessels  where  no  blame  is  imputa- 
ble  to  the  injured  ship.6  In  a  case  arising  upon  a  policy  of 
insurance,  wherein  the  loss  happened  by  collision  without 
any  neglect  or  fault  on  the  part  of  the  ship  insured,  and 
was  so  specially  alleged  in  the  declaration,  the  underwriters 


1  Abbott  on  Shipp.  5th  Am.  edit.,  p.  470  ;  Story  on  Bailm.  §  512. 
And,  that  the  words  "  perils  of  the  sea  "  apply  to  all  those  natural  perils 
and  operations  of  the  elements  which  occur  without  the  intervention  of 
human  agency,  and  which  the  prudence  of  man  cannot  foresee,  nor  his 
strength  resist,  see  3  Kent,  Comm.  300;  Blythe  (Exr.)  v.  Marsh  (Admr.) 
1  M'Cord  (S.  C.)  R.  360. 

2  Hagedorn  v.  Whitmore,  1  Stark.  R.  157. 

3  Williams  v.  Grant,  1  Conn.  R.  487  ;  Crosby  v.  Fitch,  12  Ib.  410. 

4  Story  on  Bailm.  §  5i2.     See  cases  arising  under  the  clause  in  a  bill 
of  lading  "  except  the  perils  or  dangers  of  the  rivers  or  lakes,"  considered 
and  commented  upon  by  Cowen,  J.,  in  M'Arthur  v.  Sears,  21  Johns. 
(N.  Y.)  R.  198,  199. 

5  Abbott  on  Shipp.  5th  Am.  edit.,  p.  474  ;  Story  on  Bailm.  §  512 ; 
Pickering  v.  Barclay,  2  Roll.  Abr.  248  ;    Barton  v.  Wolliford,  Comb. 
R.  56. 

6  Story  on  Bailm.  §  512 ;  Abbott  on  Shipp.  ub.  sup. 


164  LAW   OP   CARRIERS.  [CH.  VI. 

were  held  answerable,  and  Mansfield,  C.  J.,  said :  "  I  do  not 
know  how  to  make  this  out  not  to  be  a  peril  of  the  sea. 
What  drove  the  Margaret  against  the  Helena  (the  ship  in- 
sured) ?  the  sea ;  what  was  the  cause  that  the  crew  of  the 
other  ship  did  not  prevent  her  from  running  against  the 
Helena  ?  their  gross  and  culpable  negligence ;  but  still  the 
sea  did  the  mischief."  J  In  a  case  in  South  Carolina,  the 
Court  considered,  that  all  accidents  or  misfortunes  to  which 
those  engaged  in  maritime  adventures  are  exposed,  must 
undoubtedly  be  said  to  arise  from  perils  of  the  sea  ;  but  in 
modern  times,  it  has  been  found  convenient  to  distinguish 
the  losses  to  which  ships  and  goods  at  sea  are  liable,  by  the 
more  immediate  causes  to  which  they  may  be  more  particu- 
larly ascribed.  In  this  view,  losses  by  perils  of  the  sea  are 
now  restricted  to  such  accidents  or  misfortunes  only  as  pro- 
ceed from  mere  sea-damage;  that  is,  such  as  arise  ex  vi 
divina,  from  stress  of  weather,  Avinds,  waves,  lightning, 
tempest,  rocks,  sands,  &c.2  In  a  case  wherein  it  appeared, 

1  Smith  et  al.  v.  Scott,  4  Taunt.  R.  126.     The  words  "  perils  of  the 
sea,"  though  generally  referable  to  accidents  peculiar  to  that  element,  are 
sometimes  extended   to  a  capture  by  pirates,  or  to  collision  of  vessels 
when  no  blame  attaches  to  either,  but  more  especially  to  the  one  injured. 
Jones  ».  Pitcher,  3  Stew.  &  Port.  (Ala.)  R.  176. 

2  See  Opinion  of  the  Court  in  Blythe  (Exr.)  v.  Marsh  (Admr.)  1  M'Cord 
(S.  C.)  R.  360.     In  this  case,  two  vessels,  the  "  None-Such"  and  the 
"Planters'  Friend,"  were  passing  in  a  narrow  channel  between  George- 
town and  Charleston,  about  four  hundred  yards  across,  both  going  the 
same  way  ;  the  "  None-Such  "  ahead,  going  at  the  rate  of  seven  knots, 
and  the  "Planters'  Friend  "  coming  up  full  in  the  wind  at  the  rate  or' 
seven  knots.     The  captain  of  the  "  Planters'  Friend  "  was  warned  of  the 
danger,  but  thinking  he  could  clear  his  vessel,  in  attempting  to  pass,  came 
in  contact  with  the  "  None-Such,"  and  sunk  her.     In  an  action  brought 
by  the  owner  of  a  quantity  of  rice  shipped  on  board  the  "  None-Such," 
which  was  lost,  upon  a  bill  of  lading,  in  the  usual  form,  "  excepting  the 
dangers  of  the  sea,"  it  was  held,  that  the  collision  was  the  result  of  negli- 
gence, in  the  management  of  one  or  both  the  vessels,  and  that  the  owners 
of  the  "  None-Such  "  were  in  either  case  liable  to  the  shipper.     A  collis- 
ion which  would  excuse  the  carrier,  must  be  such  as  could  not  be  avoided 
by  human  prudence  and  skill. 


CH.  VI.]         RESPONSIBILITY   OF   COMMON   CARRIERS.  165 

that  a  ship  was  hove  down  on  a  beach  within  the  tide-way, 
for  the  purpose  of  repairing,  and  the  tide  having  carried 
away  the  shores,  by  which  she  was  supported,  her  side  and 
some  of  her  timbers  were  injured,  the  damage  was  consid- 
ered as  having  happened  on  the  land,  and  hence  not  to  be  a 
loss  by  the  "  perils  of  the  sea."  l 

§  167.  But  the  phrase  "  perils  of  the  sea,"  whether  un- 
derstood in  its  most  limited  sense,  as  importing  only  a  loss 
by  the  natural  accidents  peculiar  to  that  element,  or  whether 
understood  in  its  more  extended  sense,  as  including  unavoid- 
able accidents  upon  that  element,  must,  in  either  case,  be 
understood  to  include  only  such  losses  as  are  of  an  extraor- 
dinary nature,  or  arise  from  some  irresistible  force,  or  some 
overwhelming  power,  which  cannot  be  guarded  against  by 
the  ordinary  exertions  of  human  skill  and  prudence.2  Hence 
it  is,  that  if  a  loss  occurs  by  a  peril  of  the  sea,  which  might 
have  been  avoided  by  the  exercise  of  ony  reasonable  skill 
or  diligence,  at  the  time  when  it  occurred,  it  is  not  to  be 
deemed,  in  me  sense  of  the,  piimoo,  ouoK  <*  lr»c«  hy  th« 
"  perils  of  the  sea  "  as  will  exempt  the  carrier  from  liability ; 
but  rather  a  loss  by  the  negligence  of  the  party.3 


1  Thompson  v.  Whitmore,  3  Taunt.  R.  227. 

2  Opinion  of  Story,  J.,  in  the  case  of  the  Schooner  Reeside,  2  Sumn. 
(Cir.  Co.)  R.  571 ;  Abbott  on  Shipp.  Pt.  3,  ch.  4,  §  1 ;  3  Kent,  Comm. 
216,  217 ;  Elliott  v.  Rossell,  10  Johns.  (N.  Y.)  R.  1. 

3  Ibid.  ;  and  Story  on  Bailm.  $  512  a.     Where  the  claim  of  the  defend- 
ant in  an  action  against  him  for  an  injury  to  the  plaintiff's  steamboat,  was 
that  the  injury  complained  of  was  occasioned  by  the  neglect  of  the  officers 
and  crew  of  such  boat  to  keep  up  lights,  according  to  the  statute  ;  and  the 
Court  charged  the  jury,  that  if  such  officers  and  crew  were  guilty  of  neg- 
ligence, either  in  respect  to  said  lights,  or  otherwise,  to  such  a  degree  as 
essentially  to  contribute  to  the  injury  complained  of,  the  plaintiff  could  not 
recover  ;  it  was  held,  after  a  verdict  for  the  plaintiff,  that  the  charge  was 
unexceptionable.     New  Haven  Steamboat  and  Transp.  Comp.  v.  Vander- 
bilt,  16  Conn.  R.  420.     The  charge  to  the  Court,  in  this  case,  is  very 
similar  to  the  charge  of  the  Court  in  the  case  of  Sills  v.  Brown,  (9  Car. 


166  LAW   OF   CARRIERS.  [CH.  VI. 

§  168.  The  import  of  the  phrase  "  dangers  of  the  river" 
like  that  of  "  perils  of  the  sea,"  is  not,  perhaps,  very  exactly 
settled;  although  a  just  understanding  of  the  meaning  and 
effects  of  the  exception  in  a  bill  of  lading  of  the  "  dangers  of 
the  river,"  is  of  peculiar  importance  in  this  country,  as  it 
extensively  affects,  for  the  reason  of  the  great  number  and 
magnitude  of  our  navigable  rivers,  the  commercial  interests 
and  pursuits  of  the  whole  community.  The  point  has  re- 
ceived the  particular  attention  of  the  Supreme  Court  of 
Alabama,  a  State  than  which  few  others  afford  greater  facil- 
ities to  inland  water  transportation,  with  its  numerous  nav- 
igable streams  intersecting  almost  every  county.  A  con- 
sequence of  these  facilities  peculiar  to  the  country  generally, 
though  more  so  in  respect  to  some  States  than  to  others,  is, 
that  a  large  portion  of  the  people,  instead  of  providing 
means  of  their  own,  have  adopted  the  practice  of  intrusting 
to  public  carriers  an  unusual  proportion  of  products  and 
merchandise.  There  seems  to  be  no  disposition  in  the  Su- 
preme Court  of  Alabama,1  to  make  any  distinction  between 


&  Payne,  661,)  in  which  Coleridge,  J.,  told  the  jury,  that  "if  the  plain- 
tiff's servants  substantially  contributed  to  the  injury,  by  their  improper  or 
negligent  conduct,  the  defendant  would  be  entitled  to  their  verdict ;  but  if 
the  injury  was  occasioned  by  the  improper  or  negligent  conduct  of  the 
defendant's  servants,  and  the  plaintiff's  servants  did  not  substantially  con- 
tribute to  produce  it,  then  the  plaintiff  would  be  entitled  to  their  verdict." 
The  principle  involved  in  both  cases,  is,  that  while,  on  the  one  hand,  a 
party  shall  not  recover  damages  for  an  injury  which  he  has  brought 
upon  himself,  neither  shall  he  be  permitted  to  shield  himself  from  an  injury 
which  he  has  committed,  because  the  party  injured  was  in  the  wrong,  un- 
less such  wrong  contributed  to  produce  the  injury  ;  and  even  then,  it  would 
seem,  a  party  is  bound  to  use  common  and  ordinary  caution  to  be  in  the 
right.  Per  Hinman,  J.,  in  New  Haven  Steamboat  &c.  Co.,  ub.  sup, 
The  question  of  fair  or  improper  conduct  in  these  cases,  is  left  to  the 
determination  of  the  jury.  2  Greenl.  Ev.  $  220;  Williams  v.  Holland, 
6  C.  &  Pa.  R.  23  ;  Batson  v.  Donovan,  4  B.  &  Aid.  R.  21  ;  Pluckwell  v. 
Wilson,  5  C.  &  Pa.  R.  375. 

1  Jones  v.  Pitcher,  3  Stew.  &  Port.  (Ala.)  R.  135,  176  ;  and  see 
Whitesides  v.  Russell,  8  Watts  &  S.  (Penn.)  R.  44  ;  M'Gregor  v.  Kil- 
gore,  6  Ohio  R.  143 ;  Dunseth  v.  Wade,  2  Scamm.  (111.)  R.  285. 


CH.  VI.]          RESPONSIBILITY   OF   COMMON   CARRIERS.  167 

"  dangers  of  the  river  "  and  "  dangers  of  the  sea  ;  "  and  in 
the  case  referred  to,  the  Court  considered,  that  "  the  perils 
of  the  sea,  and  of  the  river,"  are  so  nearly  allied,  that  they 
may  be  considered  the  same,  except  in  the  few  instances,  in 
which  the  reason  differs.  That  there  is  a  settled  distinction 
between  perils  of  the  "  navigation  "  and  the  "  act  of  God," 
in  bills  of  lading,  is  considered  to  be  settled,  and  that  the  bill 
of  lading  may,  in  transportation  by  water,  introduce  ex- 
ceptions not  existing  by  the  Common  Law,1  which  seems 
to  be  asserted  in  Aymar  v.  Astor.2  In  Johnson  v.  Friar,3  it 
was  held,  that  the  expression  "  dangers  of  the  river  except- 
ed,"  in  bills  of  lading,  meant  only  such  as  no  human  skill 
or  foresight  could  have  guarded  against.  In  other  words,  it 
means  all  unavoidable  accidents,  for  which  common  carriers 
by  the  general  law  are  not  excused,  unless  they  arise  from 
the  "  act  of  God."  The  distinction  in  Gordon  v.  Buchanan,4 
is  expressly  taken,  for  in  that  case  it  is  said,  that  the  act  of 
God  "  means  disasters  with  which  the  agency  of  man  has 
nothing  to  do,  such  as  lightning,  tempests  and  the  like." 
The  "  perils  of  the  river  "  includes  something  more  :  "  Many 
disasters  which  would  not  come  within  the  definition  of  the 
act  of  God,  would  fall  within  the  exception  in  this  receipt. 
Such,  for  instance,  as  losses  occasioned  by  hidden  obstruc- 
tions in  the  river  newly  placed  there,  and  of  a  character, 
that  human  skill  or  foresight  could  not  have  discovered  and 
avoided."  In  Williams  v.  Branson,5  it  is  held,  that  the 

1  By  Mr.  Wallace,  in  his  note  to  the  case  of  Coggs  v.  Bernard,  1  Smith's 
Lead.  Cas.  (Am.  edit.  1847)  p.  232. 

2  Aymar  v.  Astor,  6  Cow.  (N.  Y.)  R.  266  ;  and  see  post,  Ch.  VII. 

3  Johnson  v.  Friar,  4  Yerg.  (Tenn.)  R.  48. 

4  Gordon  v.  Buchanan,  5  Yerg.  (Tenn.)  R.  72.     See  also  this  case,  and 
the  one  preceding  it,  confirmed  in  Turney  v,  Wilson,  7  Yerg.  (Tenn.)  R. 
340. 

5  Williams  v.  Branson,  1  Murph.  (N.  C.)  R.  417.     In  Marsh  v.  Blythe, 
1  N.  &  M'Cord  (S.  C.)  R.  170,  the  point  is  the  same  ;  the  meaning  of 
the  act  of  God  was  not  in  question,  and  the  point  decided  was,  that  to 
determine  whether  the  cause  of  the  loss  was  by  a  "  peril  of  the  sea,"  the 
existence  or  non-existence  of  negligence  was  to  be  tried  by  the  jury. 


168  LAW  OF  CARRIERS.  [CH.  VI. 

exception  of  "  dangers  of  the  river  "  in  the  bill  of  lading, 
"  signify  the  natural  accidents  incident  to  the  navigation, 
not  such  as  might  be  avoided  by  the  exercise  of  that  dis- 
cretion and  foresight  which  are  expected  from  persons  in 
such  employment ; "  and  that  to  ascertain  whether  the  loss 
was  by  such  "  dangers,"  it  must  be  inquired  whether  the 
accident  arose  through  want  of  proper  foresight  and  pru- 
dence. If  a  steamboat  on  the  Ohio  River  run  upon  a  stone 
and  knock  a  hole  in  her  bottom,  the  carrier  will  not  be  dis- 
charged from  liability  by  virtue  of  the  clause  in  his  bill  of 
lading,  "  the  dangers  of  the  river  only  excepted  ;  "  but,  in 
order  to  relieve  himself  from  responsibility,  it  is  incumbent 
upon  him  to  prove,  that  due  diligence  and  proper  skill  were 
used  to  avoid  the  accident,  and  that  it  was  unavoidable.1 

§  169.  The  decision  in  Dale  v.  Hall 2  has  been  considered 
to  furnish  a  good  illustration  of  the  general  principle  by 
which  the  master  and  owners  of  a  vessel  are  held  respon- 
sible for  every  injury  occurring  to  a  vessel  that  might  have 
been  prevented  by  human  foresight  or  care ;  3  and  that  by 
a  "  peril  of  the  sea  "  is  meant  a  natural,  and  not  merely  an 
inevitable  accident.  Though  the  question  presented  in  this 
case  may  seem  ludicrous,  yet  the  extent  of  actual  injury, 
and  the  importance  of  the  legal  principle  involved,  have 
rendered  it  one  of  very  considerable  discussion.  The  ques- 
tion was,  whether  a  damage  done  to  a  ship  by  rats,  was 
among  the  casualties  comprehended  under  the  general  phrase 
"  perils  of  the  seas."  The  decision  was  made  as  long  since 
as  the  year  1750  (24  Geo.  II.)  and  is  stated,  and  briefly 
commented  on,  in  the  following  manner,  by  Sir  William 
Jones  :4  "  In  a  recent  case,"  says  he,  "  of  an  action  against 
a  carrier,  it  was  holden  to  be  no  excuse  that  the  ship  was 


1  Whitesides  v.  Russell,  8  Watts  &  S.  (Penn.)  R.  44. 

2  Dale  v.  Hall,  1  Wils.  R.  281. 

3  Abbott  on  Shipp.  p.  371 ;  and  see  also  3  Kent,  Comm.  300. 

4  Jones  on  Bailm.  105. 


CH.  VI.]        RESPONSIBILITY    OF   COMMON  CARRIERS.  169 

tight  when  the  goods  were  placed  on  board,  but  that  a  rat, 
by  gnawing  out  the  oakum,  had  made  a  small  hole,  through 
which  the  water  had  gushed."  He  then  adds,  that  the  true 
reason  of  the  decision  is  not  mentioned  by  the  reporter  ;  it 
was,  says  he,  in  fact,  at  least  ordinary  negligence  to  let  a 
rat  do  such  mischief  in  the  vessel ;  and  that,  on  this  prin- 
ciple, the  Roman  Law  had  decided,  that  "  si  fullo  vesti- 
menta  polienda  acceperit,  eaque  mures  roserint,  ex  locato 
tenetur,  quia  debuit  ab  hac  re  cavere."  1  Now  it  seems  sin- 
gular, that  Sir  "William  Jones  should  endeavor  to  explain 
the  decision  on  such  ground,  because  the  defendant  posi- 
tively proved,  that  he  had  taken  all  possible  care,  and  was 
guilty  of  no  negligence  ;  and  indeed,  on  that  very  account, 
(it  will  appear  on  examination  of  the  case,)  the  jury  gave  a 
verdict  in  his  favor.  The  decision,  therefore,  sustains  the 
policy  of  the  law  of  common  carriers,  which  supposes  that 
there  may  be  negligence,  though  impossible  to  be  detected, 
and  which  renders  the  carrier  liable,  unless  the  loss  can  be 
clearly  referred  to  that  particular  kind  of  peril  of  the  sea, 
called  the  "  act  of  God  ;  "  or  "  vis  major"  2  It  supports  the 
principle,  that,  although  ordinary  care  excuses  a  warehouse- 
man, it  is  not  sufficient  to  excuse  a  common  carrier.3  Lord 
Ellenborough  treated  the  question,  whether  damage  done  to 
a  vessel  by  rats,  is  a  peril  of  the  sea,  as  one  about  which  he 
considered  there  was  no  doubt.  It  came  before  him  in  an 


1  Dig.  19,  2,  13,  6. 

2  Opinion  of  Harper,  J.,  in  Ewart  v.  Street,  2  Bail.  (S.  C.)  R.  161. 

3  In  Cailiffu.  Danvers,  (Peake,  R.  113,)  which  was  an  action  against  a 
warehouseman,  for  negligently  keeping  a  quantity  of  ginseng  which  rats 
had  got  at  and  destroyed,  although  every  precaution  had  been  taken  ;  Lord 
Kenyon  said,  —  "  that  a  warehouseman  was  only  obliged  to  exert  reason- 
able diligence  in  taking  care  of  things  deposited  in  his  warehouse.     That 
he  was  not  to  be  considered  like  a  carrier  as  an  insurer ;  and  that  the  de- 
fendant in  this  case,  having  exerted  all  due  and  common  diligence  for  the 
preservation  of  the  commodity,  was  not  liable  to  any  action  for  this  dam- 
age which  he  could  not  prevent."     S.  C.  cited  in  Jeremy  on  Carr.  p.  91, 
note  (/). 

15 


170  LAW   OF   CARRIERS.  [CH.  VI. 

action  on  a  policy  of  insurance,  in  which  it  appeared,  that 
the  ship  was  detained  at  an  intermediate  port,  and  that 
while  lying  there,  the  rats,  which  had  increased  to  a  great 
extent,  eat  holes  in  her  transoms,  and  other  parts  of  her 
bottom  ;  in  consequence  of  which  a  survey  was  called,  when 
she  was  found  so  much  injured,  that  she  was  unfit  to  pro- 
ceed on  her  voyage.  Being  thereupon  condemned,  the  plain- 
tiff sought  to  recover  a  loss  ;  but  Lord  Ellenborough  was 
clearly  of  opinion,  that  this  was  not  a  loss  within  any  of  the 

perils  insured  against.1 

0 

§  170.  In  Aymar  v.  Astor,  in  New  York,2  the  latter 
party  brought  assumpsit  against  the  former,  for  the  value 
of  certain  bear  skins  shipped  on  board  the  defendant's 
vessel  at  New  Orleans,  for  New  York,  but  which  were 
destroyed  by  rats  on  the  voyage.  By  the  bill  of  lading 
signed  by  the  master,  the  receipt  of  the  bear  skins  was  ac- 
knowledged to  be  delivered  in  good  order  and  well  condi- 
tioned to  the  plaintiff  in  New  York,  "  the  dangers  of  the 
seas  "  and  of  "  capture  "  only  excepted.  When  they  were 
delivered  in  New  York  they  were  damaged  by  rats  ;  and 
the  parties  went  into  evidence  in  the  Court  below  upon  the 
question,  whether  the  vessel  was  prudently  managed  for  the 
avoiding  of  rats,  or  whether  the  master  had  been  negligent 
in  that  respect.  The  defendants  offered  to  prove,  that  both 
at  New  Orleans  and  at  New  York,  damage  by  rats  was  con- 
sidered and  treated,  by  the  usage  of  trade,  and  merchants, 
as  a  peril  of  the  sea.  The  Court  below  excluded  the  evi- 
dence, and  the  defendants  excepted.  The  Court  charged  the 
jury  that  damage  done  by  rats  was  not  a  peril  by  the  sea, 
and  the  defendants  excepted.  The  verdict  and  judgment  in 
the  Court  below  was  for  the  plaintiff.  Savage,  C.  J..  said, 
as  to  the  question  of  liability,  independent  of  the  evidence 
offered,  the  terms  "  perils  of  the  sea,"  as  used  in  contracts 

1  Hunter  v.  Potts,  4  Campb.  R.  203. 

2  Aymar  v.  Astor,  6  Cow.  (N.  Y.)  R.  266. 


CH.  VI.]        RESPONSIBILITY   OF   COMMON   CARRIERS.  171 

of  insurance,  do  not  include  those  losses  which  may  be 
prevented  by  proper  care  :  and  he  cited  the  above  cases  of 
Dale  v.  Hall,  and  Hunter  v.  Potts.  Wood  worth  and  Suther- 
land, Js.,  upon  this  point  agreed  with  the  C.  J.,  but  differed 
from  him  by  their  agreeing  with  the  Court  below,  that  evi- 
dence of  mercantile  usage  and  understanding  at  New  Or- 
leans and  New  York,  that  injuries  by  rats  are  considered 
and  treated  as  "  perils  of  the  sea,"  was  inadmissible,1 
The  case  of  Garrigues  v.  Coxe,  in  Pennsylvania,2  which 
was  on  a  policy  of  insurance,  the  destruction  of  goods 
at  sea  by  rats  was  held,  on  the  other  hand,  to  be  a  loss  by 
a  peril  of  the  sea,  where  there  had  been  no  default  of  the 
carrier  ;  but  this  has  been  considered  and  pronounced  to  be 
the  only  case  contrary  to  the  doctrine,  as  above  established 
as  the  Common  Law  doctrine,  that  the  damage  so  occa- 
sioned is  not  a  damage  by  a  peril  of  the  sea.3  As  was 


1  The  judgment  was  reversed,  on  the  ground,  that  the  Court  erred  in 
charging  the  jury,  that  the  defendants  below  were  common  carriers.    That 
this  ground  is  opposed  to  general  authority,  see  ante,  §  80. 

2  Garrigues  ».  Coxe,  1  Binn.  (Penn.)  R.  592. 

3  3  Kent,  Comm.  p.  300,  in  a  note  to  which  page,  it  is  also^said,  that 
the  better  opinion  is,  that  the  insurer  is  not  liable  for  damage  done  by 
rats,  because  it  arises  from  the  negligence  of  the  common  carrier,  and 
it  may  be  prevented  by  due  care,  and  is  within  the   control  of  human 
prudence  and  sagacity;  and  the  authorities  cited  by  the  learned  author 
besides  the  above  cases  of  Dale  v.  Hall,  Hunter  v.  Potts,  and  Aymar  v. 
Astor,  are  Roccus  de  Ass.  n.  49  ;  Cleirac  sur  le  Guidon,  c.  5,  art.  8  ; 
Emerigon,  torn.  i.  377,  who  cites  the  Dig.  19,  2,  13,  6 ;  and  Casaregis, 
Straccha,  Huricke,  and  Targa,  may  all  be  considered,  says  Kent,  as  main- 
taining the  principle,  that  the  owner  and  not  the  insurer  is  holden  for  an 
injury  done  by  rats.     Story  refers  to  writers  upon  the  foreign  maritime 
law,  who  lay  it  down,  that  if  the  master  of  a  vessel  has  used  all  reason- 
able precaution  to  prevent  such  a  loss,  as  by  having  a  cat  on  board,  the 
loss  is  by  a  peril  of  the  sea  or  inevitable  accident ;  and  he  cites  Roccus  de 
Navibus,  n.  58;  Id.  De  Ass.  n.  49;  1  Emerig.  Ass.  377,  378;  and  see 
Marsh,  on  Ins.  B.  1,  ch.  7,  $  3,  4;  and  Abbott  on  Shipp.   p.  371 ;  Story 
on  Bailm.  $  513  ;  but  this  learned  author  considers,  that  a  loss  occasioned 
by  leakage  in  a  vessel  caused  by  rats,  is  not,  in  the  English  law,  deemed 
a  loss  by  a  peril  of  the  sea.     Id. 


172  LAW   OF   CARRIERS.  [CH.  VI. 

affirmed  by  Harper,  J.,  in  Ewart  v.  Street,  in  South  Caro- 
lina,1 in  illustrating  the  responsibility  of  common  carriers, 
"  in  all  cases  of  injury  to  vessels  from  the  gnawing  of  rats, 
the  injury  originates  from  causes  that  may  be  foreseen,  or 
from  the  agency  of  man." 

§  171.  A  very  strong  case,  in  support  of  the  principle  of 
law,  as  applied  to  common  carriers  by  water,  that  "  perils 
of  the  sea  "  denote  natural  accidents  peculiar  to  that  ele- 
ment, and  that  they  should  not  be  understood  to  include 
accidents  merely  because  they  occur  upon  that  element,  is 
the  case  of  Backhouse  v.  Snead,  in  North  Carolina : 2  A. 
being  the  owner  of  a  vessel  lately  completely  repaired,  re- 
ceived corn  on  board  on  freight ;  the  rudder  was  broken  by 
the  force  of  the  sea,  and  the  corn,  in  consequence,  lost.  The 
rudder  proved  to  be  internally  rotten,  although  it  presented 
an  external  appearance  of  soundness ;  and  the  fact  of  rot- 
tenness was  unknown  to  A.  It  was  held,  that  A.  was  liable 
for  the  loss  of  the  corn.  The  opinion  of  the  Court  was  de- 
livered by  Taylor,  J.,  who  affirmed,  that  all  accidents  which 
can  occur  by  the  intervention  of  man,  however  irresistible 
they  may  be,  the  carrier  is  considered  as  insuring  against ; 
and  he  relied,  in  support  of  this  doctrine,  upon  the  opinion 
of  Lord  Mansfield,  in  Forward  v.  Pittard,  and  upon  that  of 
the  Court  in  Dale  v.  Hall. 

§  172.  Where  a  vessel  is  so  eaten  by  icorms,  as  to  be 
unfit  to  prosecute  the  voyage,  it  is  held  not  to  be  a  loss 
within  the  perils  of  the  sea.  In  the  case  of  Rohl  v.  Parr,3 
(an  action  on  a  policy  of  insurance,)  a  vessel  insured  to  the 
coast  of  Africa,  there  and  back,  had  been  wholly  destroyed 
by  the  worms  common  to  the  rivers  of  hot  climates,  and  a 
total  loss  was  demanded  upon  the  policy.  But  the  decision 

1  Ewart  v.  Street,  2  Bail.  (S.  C.)  R.  161. 

2  Backhouse  v.  Snead,  1  Murph..(N.  C.)  R.  173. 

3  Rohl  v.  Parr,  1  Esp.  R.  445. 


CH.   VI.]         KESPONSIBILITY  OF  COMMON  CAKRIERS.  173 

was  against  the  demand,  upon  the  ground,  that  the  loss  was 
like  the  wearing  and  natural  decay  of  the  vessel,  and  not 
by  the  perils  of  the  sea.1  A  loss  of  a  ship  by  worms  in  an 
ocean,  Avhere  worms  ordinarily  assail  and  enter  into  the 
bottoms  of  vessels,  is  not  a  peril  of  the  sea  within  a  policy 
of  insurance.2  Where  a  ship  sustained  an  injury  at  the 
Cape  de  Verd  Islands,  in  the  loss  of  her  false  keel,  whereby 
she  became  exposed  to  the  action  of  worms,  which  obtained 
entrance  into  her  in  the  Paciffc  Ocean,  and  destroyed  the 
ship,  the  loss  does  not  come  within  the  policy,  it  being  a 
consequential  injury.  In  this  case,  the  Court  held,  that  the 
master  should  have  caused  the  ship  to  be  repaired  ;  and  in 
not  doing  so,  he  was  guilty  of  negligence,  which  exonerated 
the  underwriters  from  the  subsequent  loss  by  worms,  which 
was  occasioned  thereby.3 

§  173.  In  respect  to  seaworthiness,  the  want  of  which  was 
the  ground  of  the  decisions  in  the  cases  cited  in  the  two 
preceding  sections,  the  general  rule  of  law  is  well  settled. 
It  flows  directly  from  the  position,  that  the  master  and 
owners  of  a  freighting  ship  are  common  carriers,  that  their 
first  duty  is  to  provide  a  vessel  tight  and  staunch,  and  fur- 
nished with  all  tackle  and  apparel  necessary  for  the  intended 
voyage.  If  the  shipper  suffers  loss  or  damage  by  reason  of 
any  insufficiency  of  these  particulars  at  the  outset  of  the 
voyage,  he  will  be  entitled  to  recompense.4  It  is  a  term  of 
the  contract  on  the  part  of  the  owner  of  any  vessel  or  light- 
erman, implied  by  law,  that  his  vessel  is  tight  and  fit  for  the 
purpose  or  employment  for  which  he  offers  and  holds  it 
forth  to  the  public ;  it  is  the  very  foundation  and  substratum 


1  So  it  has  in  like  manner  been  held  in  this  country.     Martin  v.  Salem 
Marine  Ins.  Co.  2  Mass.  R.  420. 

2  Hazard  v.  New  England  Marine  Ins.  Co.  1  Sumn.  (Cir.  Co.)  R.  218; 
S.  C.  8  Peters  (U.  S.)  R.  557. 

3  Ibid. 

4  Abbott  on  Shipp.  5th  Am.  edit.  p.  417. 

15* 


174  LAW   OF   CARRIERS.  [CH.  VI. 

of  the  contract,  that  it  is  so  ;  and  every  reason  of  sound  pol- 
icy and  public  convenience  requires  that  it  should  be  as  the 
law  presumes.  In  support  of  this  doctrine,  is  the  case  of 
Lyon  v.  Wells,1  in  which  the  owner  of  a  lighter  was  held 
liable  to  the  full  amount  of  damage  occasioned  by  the  leak- 
age of  his  vessel.  Lord  Ellenborough  there  said  :  "  This 
we  consider  as  a  personal  neglect  of  the  owner,  or,  more 
properly,  as  a  non-performance,  on  his  part,  of  what  he 
had  undertaken  to  do,  viz.  to  provide  a  fit  vessel  for  the 
purpose."  In  Putnam  v.  Wood,2  the  Court  said  :  "  It  is  the 
duty  of  the  owner  of  a  ship,  when  he  charters  her,  or  puts 
her  up  for  freight,  to  see  that  she  is  in  a  suitable  condition 
to  transport  her  cargo  in  safety."  It  is,  moreover,  the  duty 
of  the  owner  to  keep  the  vessel  in  that  condition,  unless 
prevented  by  perils  of  the  sea ;  and  if,  during  the  voyage, 
the  vessel  meets  with  an  accident  arising  from  such  cause, 
it  is  the  duty  of  the  owner  to  see  that  she  is  put  in  com- 
plete repair,  at  the  next  convenient  port ;  for  it  is  of  the 
essence  of  the  contract  of  the  owner,  that  his  vessel  shall  be 
able  to  receive,  retain,  and  transport  her  cargo.  These  are 
principles  which  are  not  only  applicable  to  contracts  of  af- 
freightment, but  govern  in  charter  parties  and  in  policies  of 
insurance.3  An  insufficiency  in  the  furniture  of  the  vessel 
cannot  easily  be  unknown  to  the  master  or  owners  ;  but  in 
the  body  there  may  be  latent  defects  unknown  to  both.  It 
may  be  observed,  however,  that  defects  of  the  latter  sort 
cannot  exist,  unless  occasioned  by  age,  or  the  particular  em- 
ployment of  the  vessel,  or  some  accidental  disaster  that  may 
have  happened  to  it ;  all  of  which  ought  to  be  known  to  the 
owner,  and  ought  to  lead  to  an  examination  of  the  interior 
as  well  as  the  exterior  parts.*  Besides,  the  carrier  is  an  in- 

1  Lyon  v.  Wells,  5  East,  R.  428. 

2  Putnam  v.  Wood,  3  Mass.  R.  481. 

3  Ibid.     See  also  Kirnball  v.  Tucker,  10  Mass.  R.  192 ;  Goodridge  v. 
Lord,  10  Ib.  483;  Ripley  v.  Schaife,  5  B.  &  Cress.  R.  167;  Bell  v. 
Read,  4  Binn.  (Penn.)  R.  127. 

4  Abbott  on  Shipp.  5th  Am.  edit.  p.  419. 


CH.  VI.]        RESPONSIBILITY   OF   COMMON   CARRIERS.  175 

surer  against  all  but  the  excepted  perils  ;  and  on  this  ground, 
if  the  goods  are  lost  by  any  defect  in  the  vessel,  whether 
latent  or  visible,  known  or  unknown,  the  owner  is  answer- 
able to  the  freighter.  Thus,  in  Coggs  v.  Bernard,1  Lord 
Chief  Justice  Holt  said  :  "  The  law  charges  the  person 
(namely,  common  carrier,  hoyman,  master  of  a  ship,)  thus 
intrusted  to  carry  goods,  against  all  events  but  acts  of  God 
and  the  king's  enemies."  2  Hence  if  there  is  a  stipulation  in 
a  bill  of  lading,  that  the  vessel  shall  be  made  staunch  and 
strong,  and  be,  in  every  way,  fitted  for  the  voyage,  it  is  not 
so  much  a  new  engagement  between  the  parties,  as  the 
confirmation  of  the  obligation  imposed  upon  all  common 
carriers  by  the  Common  Law.3  If,  however,  a  vessel  is 
reasonably  sufficient  for  the  voyage,  and  is  lost  by  a  peril 
of  the  sea,  the  carrier  will  not  be  chargeable  by  its  being 
shown  that  a  stouter  vessel  would  have  outlived  the  storm. 
This  was  decided  in  Amies  v.  Stevens,4  in  the  case  of  a  hoy, 
driven  by  a  sudden  gust  of  wind  against  the  pier  of  a  bridge, 
through  which  it  attempted  to  pass,  and  thereby  sunk,  in 
consequence  of  a  shock  that  a  stronger  vessel  might  have 
sustained  without  sinking. 

§  174.  Therefore,  thus  far,  it  appears,  that  it  is  not  every 
loss  proceeding  directly  from  natural  causes,  as  winds, 
storms,  &c.,  which  is  to  be  viewed  as  happening  by  the 
perils  of  the  sea,  or  the  river.  But  again,  a  common  carrier, 
although  he  is  not  liable  for  the  act  of  God,  may  become  so 


1  Coggs  v.  Bernard,  Appx.  p.  i. 

2  And  see  Dale  v.  Hall,  ub.  sup.  ;  Backhouse  v.  Snead,  ante,  §  171. 
Clark  v.  Richards,  1  Conn.  R.  54  ;  Dickinson  v.  Haslitt,  3  H.  &  Johns. 
(Md.)  R.  345;  Emery  v.  Hersey,  4  Greenl.  (Me.)  R.  407;  M'Clure  v. 
Hammond,  1  Bay  (S.  C.)  R.  99  ;  Putnam  v.  Wood,  ub.  sup. ;  Harrington 
v.  Lyles,  2  N.  &  M'Cord  (S.  C.)  R.  88. 

3  Holt  on  Shipp.  79  ;  Hollingworth  v.  Brodrick,  7  Adol.  &  Ell.  R.  40. 

4  Amies  u.  Stevens,  1  Stra.  R.  128  ;  cited  in  support  of  the  proposition 
in  the  text,  in  Abbott  on  Shipp.  5th  Am.  edit.  p.  475. 


176  LAW  OF  CARRIERS.  [CH.  VI. 

if  he  voluntarily  and  improperly  encounter  the  mischief. 
Thus,  if  a  barge-master  should  rashly  shoot  a  bridge,  when 
the  bent  of  the  weather  is  tempestuous,  he  would  be  charge- 
able on  account  of  his  temerity  and  imprudence  ;  when  it 
would  be  otherwise,  if,  using  all  proper  precautions,  he  should 
be  driven  by  the  force  of  the  current,  or  by  the  wind  against 
a  pier,  and  thereby  the  goods  should  be  lost ; 1  for  then  it 
would  be  deemed  a  loss  by  mere  casualty.2 

§  175.  It  has  appeared,  also,  that  a  carrier  by  land  is  liable 
for  a  loss  happening  in  consequence  of  his  deviating  from  the 
common  and  established  route.3  So,  in  like  manner,  a  car- 
rier by  water  is  responsible  for  a  loss  happening  by  a  peril  of 
the  sea,  when  the  loss  would  not  have  thus  happened,  if  he 
had  not  improperly  encountered  the  mischief  by  deviating 
from  the  regular  course  of  the  voyage.  As,  in  a  case  where 
the  defendant  received  on  board  his  barge  certain  lime  to  be 
conveyed  for  the  plaintiff  from  Burly  Cliff  to  London.  The 
master  deviated  from  the  usual  and  customary  voyage  with- 
out any  justifiable  cause,  and  whilst  the  barge  was  so  out  of  her 
course,  she  encountered  a  storm,  and  the  sea  communicating 
with  the  lime,  caused  it  to  ignite,  whereby  the  barge  and 
cargo  were  lost.  In  an  action  on  the  case  for  the  loss  of  the 
lime,  the  declaration  alleged,  that  "  it  was  the  duty  of  the 
defendant  to  have  carried  and  conveyed  the  lime  by  and 
according  to  the  direct,  usual,  and  customary  way,  course, 
and  passage,  without  any  voluntary  and  unnecessary  devia- 
tion or  departure  from,  or  delay,  or  hindrance  in  the  same  ;  " 
and  averred  the  loss  to  be  by  reason  of  the  deviation  and 
departure  and  delay  out  of  such  usual  and  customary  course 
and  passage.  It  was  held,  first,  that  the  damage  sustained 

1  Amies  v.  Stevens,  1  Slra.  128,  recognized  and  approved  in  Colt  v. 
McMechen,  6  Johns.  (N.  Y.)  R.  160.     See  also  Elliott  v.  Rossell,  10 
Johns.  (N.  Y.)  R.  1. 

2  Story  on  Bailm.  §  492. 

3  Ante,  $  164. 


CH.  VI.]         RESPONSIBILITY   OP  COMMON    CARRIERS.  177 

by  the  plaintiff  was  sufficiently  proximate  lo  the  wrongful 
act  of  the  defendant,  to  form  the  subject  of  an  action  ; 
secondly,  that  the  declaration  was  sufficient  to  support  a 
judgment  for  the  plaintiff.1 

§  176.  Again,  where  it  appeared,  that  the  regular  course 
of  vessels  from  New  York  to  Norwich  in  Connecticut,  was 
through  Long  Island  Sound,  both  in  summer  and  in  winter, 
that  in  the  year  1836,  the  navigation  of  the  Sound  was  ob- 
structed by  the  ice,  and  for  a  longer  period  than  was  usual, 
that  in  the  month  of  February,  during  that  period,  a  vessel 
bound  from  New  York  to  Norwich,  departed  from  such  usual 
route,  and  performed  her  voyage  in  the  open  sea,  on  the  south 
side  of  Long  Island ;  it  was  held,  that  this  was  a  deviation 
without  reasonable  necessity,  that  it,  therefore,  rendered  the 
the  owners  of  the  ship  liable,  as  common  carriers,  for  a  loss 
occasioned  by  the  perils  of  the  sea.  It  was  urged  by  the 
counsel,  that  the  danger,  both  to  the  vessel  and  cargo,  from 
fire,  thieves,  &c.  while  lying  in  the  port  of  New  York, 
created  such  a  necessity  of  sailing  as  justified  the  master  in 
taking  the  outside  passage.  But  this  pretended  danger,  the 
Court  considered  was  not  peculiar  to  New  York,  and  could 
not  be  esteemed  imminent  or  uncommon  ;  and  therefore 
could  not  justify  any  unusual  or  hazardous  experiment. 
The  distinction  was  a  very  obvious  one,  the  Court  observed, 
between  this  case  and  one  in  which  a  vessel  already  on  her 
voyage  and  in  transilu,  departs  from  the  usual  route,  by 
reason  of  obstructions  of  the  nature  of  the  one  in  question, 
or  of  blockades,  &c.  In  such  cases,  the  master  must  act ; 
a  necessity  is  thrown  upon  him ;  and  if  he  is  governed  by  a 
sound  discretion,  he  stands  justified.2 


1  Davis  v.  Garrett,  6  Bing.  R.  716. 

2  Crosby  v.  Fitch,  12  Conn.  R.  410  ;  and  see  Oliver  v.  Maryland  Ins. 
Co.  7  Cranch  (U.  S.)   R.  497  ;  Williams  v.  Grant,  1  Conn.  R.  487;  3 
Kent,  Comm.  165. 


178  LAW   OF   CARRIERS.  [CH.  VI. 

§  177.  In  Hand  v.  Baynes,  in  Pennsylvania,1  the  defend- 
ant, who  was  the  owner  of  a  line  of  vessels  engaged  in 
transporting  goods  from  Philadelphia  to  Baltimore,  received 
certain  goods  belonging  to  the  plaintiff,  on  board  of  one  of 
his  vessels,  and  gave  a  receipt  in  the  following  words :  — 
"  Received  on  board  of  Hand's  line  for  Baltimore  via  Chesa- 
peake and  Delaware  Canal,  from  J.  B.  (the  plaintiff)  one 
hundred  slaughter  hides  on  deck,  which  I  promise  to  deliver 
to  J.  D.  at  Baltimore,  the  dangers  of  the  navigation,  fire, 
leakage,  and  breakage  excepted."  The  vessel  left  Philadel- 
phia, and  on  arriving  at  the  mouth  of  the  canal,  the  captain 
was  informed  that  the  locks  were  out  of  order,  and  that  he 
could  not  be  allowed  to  pass  through  the  canal.  He  then 
proceeded  down  the  bay  and  out  to  sea,  with  the  intention  of 
going  round  to  Baltimore  ;  but,  in  a  gale  of  wind,  the  vessel 
struck  on  a  shoal,  and  with  the  cargo  was  totally  lost.  It  was 
held,  that  the  contract  was  a  contract  to  carry  the  goods  to 
Baltimore  through  the  •canal;  and  that  the  circumstances 
did  not  excuse  the  deviation  from  that  route  ;  that,  by  an 
alteration  of  the  voyage,  the  shipper  was  exposed  to  risks 
which  he  would  not  have  voluntarily  encountered  ;  that  a 
voyage  by  sea  required  vessels  of  a  different  description, 
differently  found,  and  differently  manned  ;  and  although  the 
shipper  might  have  been  willing  to  encounter  the  peril,  in  a 
vessel  adapted  to  the  trade,  it  did  not  follow,  that  he  would 
risk  his  property  in  a  vessel  whose  ordinary  route  was 
through  the  canal.  When  the  master  discovered  the  impedi- 
ments to  the  prosecution  of  the  voyage,  through  the  route 
called  for  in  the  contract,  his  duty,  the  Court  held,  was 
plain  ;  he  had  one  of  two  courses  to  pursue  ;  to  remain  in  a 
place  of  safety  at  the  mouth  of  the  canal,  or  in  some  conve- 
nient and  safe  place  in  the  neighborhood,  until  the  obstruc- 
tions were  removed  ;  or  he  should  have  returned  and  informed 
the  owners  and  shippers,  of  the  impracticability  of  proceed- 
ing through  the  canal.  The  legal  effect  of  the  contract,  the 

1  Hand  v.  Baynes,  4  Whait.  (Penn.)  R.  204. 


CH.  VI.]        RESPONSIBILITY   OF   COMMON   CARRIERS.  179 

Court  held,  was  an  engagement  to  carry  and  deliver  the 
goods  at  Baltimore  in  a  reasonable  time,  and  what  would  be 
a  reasonable  time,  must  be  determined  under  all  the  circum- 
stances, with  a  view  to  the  condition  of  the  canal,  the  season 
of  the  year,  the  state  of  the  weather,  and  such  other  matters 
as  might  enter  into  the  question.  But,  said  the  Court,  where 
the  contract  is  express  to  deliver  goods  in  a  prescribed  time, 
no  temporary  obstruction,  or  the  impossibility  of  complying 
with  the  engagement,  arising  from  the  condition  of  the  locks 
on  the  canal,  or  any  other  cause,  would  be  a  defence  to  a  suit 
for  a  failure  to  perform  the  contract.  The  Court  were  further 
of  opinion,  that  the  clause  in  the  receipt,  "  the  dangers  of  the 
navigation,"  did  not  apply  to  dangers  caused  by  the  canal's 
being,  by  inevitable  accident,  rendered  impassable  ;  and  that 
occasional  interruptions  of  trade  arising  from  breaches  in 
canals,  or  other  accidents,  are  inconveniences,  but  in  no 
sense  could  they  be  considered  as  dangers  of  the  navigation, 
coming  within  the  exception  ;  and  they  said,  that  as  the  con- 
tract excepted  the  dangers  by  the  navigation  on  the  route  of 
the  canal,  when  there  may  be  such  a  danger  as  is  provided 
for,  it  would  be  time  enough  to  decide  when  it  should  arise. 

§  178.  So  a  loss  occurring  by  a  deviation,  by  taking  an 
inland  passage,  will  render  the  carrier  liable.  The  steam- 
boat of  the  defendants  going  through  an  inland  passage, 
to  Charleston,  South  Carolina,  grounded  from  the  reflux  of 
the  tide,  in  consequence  of  which  she  fell  over,  and  the 
bilgewater  rose  into  the  cabin,  and  injured  a  box  of  books 
belonging  to  the  plaintiff ;  and  it  was  held  that  the  defend- 
ants were  liable  for  the  loss  thus  occasioned.1 

§  179.  However,  although  when,  by  a  bill  of  lading,  the 
goods  are  to  be  carried  from  one  port  to  another,  a  direct 
voyage  is  prima  fade  intended,  yet  this  is  a  presumption 

1  Charleston  and  Columbia  Steamboat  Co.  v.  Bason,  Harp.  (S.  C.)  R. 
262,  cited  in  1  Rice,  Dig.  156. 


180  LAW   OF   CARRIERS.  [CH.  VI. 

which  may  be  controlled  by  a  usage  to  stop  at  intermediate 
ports,  or  by  a  personal  knowledge,  on  the  part  of  the  shipper, 
that  such  a  course  is  to  be  pursued.1  In  an  action  against  the 
defendant,  as  the  owner  of  a  sloop,  for  a  loss  sustained  by 
the  plaintiff,  in  consequence  of  a  deviation  by  the  master, 
the  defence  was,  that  the  sloop  was  a  general  coasting  vessel 
from  New  York  to  Norfolk,  and  other  places  on  the  Chesa- 
peake, and  rivers  running  into  that  bay  ;  that  it  was  the 
usage  of  such  vessels  to  take  freight  for  several  ports,  stop- 
ping at  the  first  port,  and  passing  on  to  the  others  succes- 
sively, leaving  the  goods  taken  for  each,  and  taking  in  other 
goods ;  and  this  usage  was  general  and  public.  The  Court 
held,  that  the  bill  of  lading  was  to  be  construed,  like  other 
contracts,  according  to  the  intention  of  the  parties ;  that 
usage  of  trade  is  always  presumed  to  be  within  the  know- 
ledge of  the  parties,  and  that  such  contracts  as  this  are  sup- 
posed to  be  made  in  reference  to  it.  There  was  competent 
evidence  of  the  usage  in  relation  to  vessels  like  the  one  in 
question,  and  there  was  also  evidence  that  the  plaintiff's 
agent  knew  of  it ;  and,  therefore,  the  prima  fade  intention 
of  a  direct  voyage  was  subject  to  the  contract  which  was 
controlled  by  the  usage  so  known  and  established.2 

§  180.  That  the  injury  done  to  a  carrier  ship  or  goods 
on  board,  by  her  settling,  on  the  ebbing  of  the  tide,  on 
a  hard  substance  at  the  bottom  of  the  harbor  where  she 
is  properly  moored,  is  an  injury  occasioned  by  the  perils 
of  the  sea,  is  beyond  all  doubt ;  provided  the  injury  does 
not  proceed  from  an  inherent  weakness  in  the  ship,  or 
mere  wear  and  tear.  This  principle  is  affirmed  by  Tindal, 
C.  J.,  in  Kingsford  v.  Marshall.3  The  case  of  Potter  v. 
The  Suffolk  Insurance  Company,4  was  narrowed  down 


1  Crosby  v.  Fitch,  ub.  sup. 

2  Lowiy  v.  Russell,  8  Pick.  (Mass.)  R.  360. 

3  Kingsford  v.  Marshall,  8  Bing.  R.  458. 

4  Potter  v.  Suffolk  Ins.  Co.  2  Suran.  (Cir.  Co.)  R.  197. 


CH.  VI.]        RESPONSIBILITY   OF   COMMON   CARRIERS.  181 

to  the  consideration,  whether  the  loss  of  a  vessel  in  that 
condition  was  from  inherent  weakness ;  and  Mr.  J.  Story 
held,  that  if  it  was  not  from  such  weakness,  it  was  occa- 
sioned by  an  unusual  and  extraordinary  accident  in  ground- 
ing upon  the  ebbing  of  the  tide,  which  would,  he  held,  be  a 
peril  of  the  sea.  If  a  carrier  ship,  in  taking  ground,  should 
fall  over  and  thereby  bilge,  (which  would  be  no  ordinary 
damage,  but  an  unusual  accident,)  it  would  be  a  loss  by 
the  perils  of  the  sea,  just  as  much  as  it  would  be  if  done 
by  striking  on  a  hard  substance.1  The  case  of  Fletcher 
v.  Inglis,2  did  not  turn  upon  any  distinction,  whether  the 
injury  was  by  a  hard  or  soft  bottom ;  but  upon  the  point, 
whether  it  was  an  ordinary  injury  or  an  extraordinary  ac- 
cident. Cases  of  this  sort,  therefore,  depend  entirely  upon 
the  particular  facts  and  circumstances  attending  them. 
Thus,  in  one  case  in  South  Carolina,  the  vessel  became 
stranded,  and  the  cotton  which  was  on  board  was  in  con- 
sequence damaged,  but  the  vessel  being  proved  to  be  good 
and  sufficiently  manned,  the  carrier  who  undertook  was 
not  held  liable.3  When,  in  another  case,  in  the  same  State, 
where  a  vessel  was  as  safely  moored  in  a  dock  as  she  could 
be  at  the  particular  season  of  the  year,  settled  on  the  bot- 
tom which  declined  towards  the  stream,  and  sprung  a  leak, 
and  the  goods  were  damaged  by  the  water  in  the  hold 
being  thrown  forward,  the  case  was  held  not  to  come  within 
the  exception  of  the  act  of  God,  or  inevitable  accident.4 

1  Ibid.  ;  Bishop  v.  Pentland,  7  B.  &  Cres.  R.  219. 

2  Fletcher  ».  Inglis,  2  B.  &  Aid.  R.  315. 

3  Barnwell  v.  Hussey,  1  S.  C.  Con.  R.  114. 

4  Ewart  v.  Street,  2  Bail.  (S.  C.)  R.  157.     Harper,  J.,  who  delivered 
the  opinion  of  the  Court  in  this  case,  observed  :  "  We  might  well  con- 
clude, from  the  evidence  before  us,  that  there  was  no  degree  of  neglect  in 
the  master  of  the  vessel  ;  that  the  ship  was  moored,  so  far  as  could  be 
foreseen,  in  the  most  judicious  manner;  and  that  she  was  staunch  and 
seaworthy  ;  but,  we  cannot  be  assured,  that  the  jury  (who  had  found  for 
the  plaintiffs)  have  found  this.     They  may  have  concluded,  contrary  to  the 
opinion  of  the  witnesses,  that  there  was  mismanagement,  and  determined, 
from  the  fact  of  the  ship's  springing  a  leak,  under  the  circumstances,  that 
she  was  not  seaworthy." 

16 


182  LAW   OF   CARRIERS.  [CH.  VI. 

§  181.  A  quantity  of  flour,  6n  its  way  from  Baltimore  to 
Philadelphia,  was  put  on  board  a  schooner  in  Christiana 
Creek,  and  it  was  alleged,  in  an  action  against  the  carriers, 
who  were  common  carriers  between  those  two  cities,  that,  at 
the  time  the  vessel  commenced  her  voyage,  the  tide  in  the 
creek  wa  unusually  low,  owing  to  the  prevalence  of  the 
westerly  and  north-westerly  winds  ;  that  after  she  had  gone 
a  short  distance,  she  grounded,  but  was  got  off  in  safety, 
and  then  proceeded  some  distance  further  down  the  creek, 
when  she  again  grounded,  whereby  some  of  the  planks  in 
her  bottom  were  strained,  so  that  she  leaked  and  filled  with 
water,  in  consequence  of  which  a  part  of  the  flour  was  trans- 
shipped by  another  vessel ;  that  she  again,  after  some  time, 
was  got  afloat,  and  proceeded  to  Philadelphia,  where  she 
delivered  the  flour  which  remained  on  board  of  her  to  the 
consignee,  in  a  damaged  condition.  The  defendants  in- 
sisted they  were  not  liable,  because  the  loiv  tide  was  the  act 
of  God,  and  that  act  occasioned  the  damage.  The  opinion 
of  the  Court  was,  that  if  the  prevalence  of  the  westerly  and 
north-westerly  winds  had  occasioned  an  uncommonly  low 
tide  in  the  creek,  and  thus,  in  an  extraordinary  manner,  in- 
creased the  perils  of  that  navigation,  the  carriers  were  not 
bound,  at  their  own  risk,  to  encounter  those  new  and  extra- 
ordinary dangers ;  and  that  they  would  have  been  excusa- 
ble in  making  a  reasonable  delay,  until  those  additional 
and  temporary  perils  had  passed  away.  But  inasmuch  as 
they  did  proceed,  they  prosecuted  the  voyage  at  their  own 
risk  ;  they  knew,  or  they  took  upon  themselves  to  know,  the 
changes  in  the  navigation  which  had  been  thus  occasioned, 
and  they  voluntarily  proceeded  ;  consequently,  they  moved 
forward  at  their  own  risk.  The  jury  were  therefore  di- 
rected, that  the  evidence  offered  did  not  legally  excuse  the 
defendants  from  answering  for  the  damage  which  the  flour 
received  on  board  the  schooner,  and  they  found  for  the 
plaintiff.1 


Boyle  v.  M'Laughlin,  4  H.  &  Johns.  (Md.)  R.  291. 


CH.  VI.]        RESPONSIBILITY    OF   COMMON   CARRIERS.  183 

§  182.  If  a  carrier  vessel  should  perish,  in  consequence  of 
striking  against  a  rock  in  the  sea,  or  a  snag  in  a  river,  or 
any  natural  obstruction,  the  circumstances  under  which  the 
event  has  taken  place  must  be  ascertained,  in  order  to  de- 
cide whether  it  happened  by  a  peril  of  the  sea,  or  by  the 
intervention  of  man.  If  the  situation  of  the  rock  or  snag,  or 
other  obstruction,  is  generally  known,  and  the  vessel  is  not 
forced  upon  it  by  adverse  winds  or  tempests,  the  loss  is  to 
be  imputed  to  the  fault  of  the  master ; l  but,  on  the  other 
hand,  if  it  is  not  generally  known,  and  the  master  has  a 
pilot,  where  it  is  usual  to  have  one,  the  loss  is  deemed  attri- 
butable to  the  act  of  God.2  The  boatmen  who  transport 
goods  from  the  interior  of  South  Carolina,  are  common  car- 
riers ;  and  a  loss  it  has  been  held,  in  that  State,  occasioned 
by  one  of  the  boats  running  on  an  unknown  snag;  in  the 
usual  channel  of  the  river,  is  referable  to  the  act  of  God,  and 
excuses,  therefore,  the  carrier.3  If  a  shoal  unexpectedly 
changes  its  bed,  and  a  ship  grounds  upon  it,  the  unknown 
shoal  is  the  immediate  and  sole  cause  of  the  stranding.4 

§  183.  In  an  action  against  the  defendants,  as  common 
carriers,  it  was  admitted  that  they  undertook  to  transport  the 
merchandise  in  question  from  Providence  to  New  York,  on 
board  a  vessel  of  about  twenty  tons,  owned  by  the  defend- 
ants, for  hire,  the  danger  of  the  seas  only  excepted.  While 
the  vessel  was  on  her  passage,  she  run  against  a  rock  in 
Providence  River,  in  fair  weather,  and  under  a  moderate 
breeze,  and  bilged,  so  that  the  merchandise  (salt)  was  lost. 
The  plaintiffs  contended,  and  brought  witnesses  to  prove, 
that  the  rock  was  well  known  to  the  people  in  the  neighhor- 
hood,  and  to  those  concerned  in  the  navigation  of  that  river  ; 


1  Story  on  Bailm.  $  516  ;  Elliott  t».  Rossell,  cited  post,  §  185. 

2  Ibid. ;  Case  of  The  William,  6  Rob.  R.  316,  cited  in  Story,  sup. 

3  Smyrl  v.  Niolen,  2  Bail.    (S.  C.)  R.  421 ;   Faulkner  v.  Wright, 
1  Rice  (S.  C.)  R.  107,  and  see  post,  §  187. 

4  Per  Richardson,  J.,  in  Reaves  v.  Waterman,  2  Speer  (S.  C.)  R.  208. 


184  LAW   OF   CARRIERS.  [CH.  VI. 

that  the  vessel,  when  she  run  against  it,  was  out  of  the 
channel  course  of  navigation  ;  that  the  master  was  not  ac- 
quainted with  the  navigation  of  the  river  ;  and  that  it  was 
usual  to  have  a  pilot,  but  that  none  was  taken  on  board. 
The  defendants,  on  their  part,  produced  evidence  to  prove 
that  the  rock  was  not  generally  known.  The  defendants 
were  held  liable,  because  the  master  was  ignorant  of  the 
navigation,  and  had  no  pilot  on  board,  as  was  customary, 
and  the  vessel  went  out  of  the  usual  course.  Mr.  J.  Gould 
said :  "  Now  such  a  deviation  would  certainly  have  been 
misconduct ;  the  alleged  ignorance  of  the  master  (there  being 
no  pilot  on  board)  would  have  been  a  species  of  deficiency, 
in  the  nature  of  the  want  of  seaworthiness ;  and  the  want 
of  a  pilot,  where  one  is,  by  common  usage,  employed,  and 
the  master  ignorant  of  the  navigation,  is  manifestly  a  cul- 
pable neglect."  * 

* 

§  184.  By  the  foregoing  cases  one  thing  is  rendered  per- 
fectly clear,  viz.  that  the  question,  whether  the  loss  of,  or  in- 
jury done  to,  goods,  while  being  transported  by  the  carrier, 
by  natural  causes,  has  followed  the  misconduct,  negligence, 
or  incompetence  of  the  carrier,  his  servants  or  agents,  or  has 
been  consequent  upon  the  unseaworthiness  or  insufficiency 
of  the  vessel,  is  a  question  of  fact,  depending  upon  the  find- 
ing of  the  jury  upon  the  evidence.2  Cases,  therefore,  may 
arise,  in  relation  to  carriers  by  water,  as  in  relation  to  car- 
riers by  land,  when  a  jury  may  be  called  upon  to  exercise 
very  nice  judgment  and  discrimination  in  weighing  opposite 


1  Williams  v.  Grant,  1  Conn.  R.  487.     For  sailing  down  rivers,  or  out 
of  harbors,  a  pilot  must  be  taken  on  board,  where,  by  usage  or  the  laws 
of  the  country,  a  pilot  is  required.     Abbott  on  Shipp.  p.  344.     A  vessel  is 
not  seaworthy,  if  she  proceeds  without  a  pilot  in  navigating  a  river,  where 
it  is  the  custom  to  take  on  board  a  licensed  pilot.     Ib.  note  1  ;  Story's 
Edit,  of  Ib.  (1846.) 

2  As  to  the  question  of  negligence,  &c.  being  for  the  jnry,  see  ante, 
$7,  11,  16,27,51. 


CH.  VI.]          RESPONSIBILITY   OF   COMMON  CARRIERS.  185 

testimony  of  witnesses ;    as  the  cases  we  next  proceed  to 
notice  afford  striking  examples. 

§  185.  In  a  case  where  a  scow  was  employed  by  the  de- 
fendants as  common  carriers,  to  carry  the  ashes  of  the  plain- 
tiffs from  Ogdensburgh,  in  the  State  of  New  York,  to  Mon- 
treal, in  Canada,  the  scow  was  lost  by  splitting  upon  a  rock, 
on  the  shoals,  within  sight  of  Montreal.  The  master  of  the 
scow  deposed,  that  he  took  a  pilot  at  Chateaugy,  whom  he 
was  informed  was  a  good  pilot ;  that  they  passed  safely  over 
the  La  Chine  Rapids,  and  that  the  scow  was  proceeding, 
with  a  strong  current,  in  a  channel  which  the  witness  knew, 
from  long  experience,  to  be  the  right  channel ;  that  when  so 
proceeding,  a  sudden  gust  of  wind  arose,  and  drove  the  scow 
out  of  the  right  course,  the  pilot  calling  out  that  they  were 
getting  out  of  the  right  channel,  and  urging  all  hands  to 
row  as  hard  as  possible,  to  regain  the  right  channel ;  that 
the  witness  and  all  hands  accordingly  rowed,  to  the  utmost 
exertion  of  their  strength,  but  in  vain,  as  the  scow  was 
driven  on  the  rock  above  mentioned,  and  was  lost ;  that  the 
scow,  manned  by  six  able-bodied  boatmen,  was  about  a  mile 
from  the  rock  when  the  pilot  ordered  the  men  to  row,  and 
that  they  continued  to  row  for  half  an  hour  before  the  scow 
struck  ;  that  if  the  scow  had  been  left  to  the  winds  and 
current,  it  would  have  been  driven  on  the  rocks  and  shoals, 
above  the  place  where  she  struck  ;  that  the  scow  was  light- 
ened of  three  boat-loads,  before  passing  the  Chateaugy  River, 
so  as  to  satisfy  the  pilot.  These  facts  were  also  deposed  to 
by  two  of  the  boatmen.  A  witness  for  the  plaintiffs  testified, 
that  he  was  standing  on  the  dock,  at  Montreal,  about  a  mile 
from  the  scow  at  the  time  she  struck  ;  that  he  saw  her  about 
half  an  hour  before  ;  that  the  weather  was  fair,  the  sky  clear, 
and  that  there  was  no  breeze  where  he  was  ;  that  he  saw  the 
master  about  half  an  hour  after  he  got  ashore,  who  said  he 
supposed  they  were  safe  until  the  pilot  called  out,  and  that 
the  pilot  attempted  to  go  to  the  right  of  the  rock,  and  finding 
he  could  not,  endeavored  to  go  to  the  left,  and  did  not  dis- 

16* 


186  LAW    OF    CARRIERS.  [CH.  VI. 

cover  the  rock  soon  enough  to  avoid  it.  Another  witness 
said,  he  saw  the  scow  strike  the  rock,  but  did  not  perceive 
any  gust  of  wind,  though  there  might  have  been  a  flaw  of 
wind  without  his  seeing  it.  The  Judge  charged  the  jury, 
that  the  only  ground  on  which  the  defendants  could  be  ex- 
onerated would  be,  that  the  loss  was  occasioned  by  the  act 
of  God  ;  that  the  cause  of  the  loss  was  a  fact  for  the  jury  to 
determine,  and  he  left  the  fact  for  their  decision,  with  an 
opinion  that  the  loss  was  not  owing  to  the  act  of  God,  within 
the  true  meaning  of  the  rule  on  the  subject.  The  jury  found 
a  verdict  for  the  plaintiff  for  the  value  of  the  ashes.  Upon 
a  motion  to  set  aside  the  verdict,  and  for  a  new  trial,  the 
motion  was  denied.  Kent,  C.  J.,  said,  that  the  only  real 
point  in  the  case  was  the  question  of  fact  submitted  to  the 
jury,  viz.,  whether  the  loss  of  the  scow  was  to  be  attributa- 
ble to  that  inevitable  necessity,  not  arising  from  the  inter- 
vention of  man,  which  human  prudence  could  not  have 
avoided,  and  which  is  considered  in  law  the  act  of  God. 
There  was  contradictory  testimony  upon  this  point,  but  he 
thought  with  the  Judge  who  tried  the  cause,  that  the  weight 
of  evidence  was  in  favor  of  the  conclusion  drawn  by  the 
jury,  and  that  the  loss  did  not  arise  from  any  sudden  gust 
of  wind,  but  from  the  want  of  due  care  and  skill  in  steering 
the  boat  down  a  well  known  and  dangerous  rapid  ;  the 
dangers  of  such  a  rapid  were  at  the  risk  of  the  common  car- 
rier, as  much  as  the  dangers  of  a  broken  and  precipitous 
road.  And  the  loss,  said  the  learned  Judge,  must  have 
arisen  from  some  extraordinary  occurrence,  as  winds,  storms, 
lightnings,  &c.,  to  bring  the  case  within  the  exception ;  and 
the  rest  of  the  Court  concurred.1 

§  186.  Again,  in  an  action  against  the  owner  of  a  sloop, 
to  recover  from  him,  as  a  common  carrier,  the  value  of  goods, 
shipped  and  lost,  the  defence  was,  that  the  sloop  was  staunch 


Elliott  v.  Rossell,  10  Johns.  (N.  Y.)  R.  1. 


CH.  VI.]         RESPONSIBILITY   OF  COMMON   CARRIERS.  187 

and  well  found,  and  that,  in  attempting  to  make  Edisto 
Inlet,  as  was  proper,  the  master,  in  heaving  the  lead,  acci- 
dentally fell  overboard  and  was  drowned  ;  the  seamen  were 
unable  to  navigate  the  vessel,  and  so  by  the  act  of  God,  she 
got  upon  the  breakers,  and  was  deserted  by  the  crew.  In 
behalf  of  the  defendant,  it  was  proved,  that  the  master  was 
steady  and  skilful,  and  never  known  to  be  drunk ;  that  the 
sloop  was,  in  all  respects,  seaworthy,  and  the  crew  suffi- 
cient. On  the  other  hand,  the  plaintiff's  witness  (the  master 
of  a  fishing  smack  who  saw  the  sloop)  said  in  effect,  that 
he  was  in  sight  of  the  sloop  several  hours,  and  from,  her 
management  thought  the  people  on  board  drunk  or  fools, 
and  that  there  was  no  difficulty  in  wind  or  weather.  An- 
other witness  (mate  of  the  fishing  smack)  saw  the  master 
of  the  sloop  about  daylight  the  morning  she  sailed,  when  he 
seemed  intoxicated  ;  that  when  they  passed  the  sloop,  he 
thought  and  said,  her  captain  must  be  crazy,  he  had  so 
many  courses,  and  run  so  far  from  the  buoy  and  marks. 
It  was  held,  that  the  testimony  did  not  show  a  loss  by  the 
act  of  God.1 

§  187.  A  vessel  disabled  by  stranding  may  fall  within  the 
excepted  perils,  but  still  the  master  may  be  liable  for  negli- 
gence in  not  forwarding  the  goods  on  board,  or  such  as 
remain  on  board,  after  the  accident,  to  their  destination.  In 
the  event  mentioned,  the  conduct  of  the  master  or  owner, 
therefore,  becomes  a  subject  of  important  consideration,  and 
that,  with  the  circumstances  peculiar  to  the  case,  is  a  matter 
of  fact  to  be  submitted  to  the  jury.  When  all  reasonable 
efforts,  in  the  opinion  of  the  jury,  fail  to  save  the  cargo,  the 
ultimate  loss  may  be  fairly  regarded  as  resulting  from  the 
first  cause,  as  the  vis  major  ;  upon  the  ground,  that  when 
human  exertions  have  failed  to  obviate  its  consequences,  the 
"  act  of  God  "  may  still  be  regarded  as  continuing  its  opera- 


Ross  v.  Callender,  2  Speer,  (S,  C.)  393. 


188  LAW    OF    CARRIERS.  [CH.  VI. 

tion.1  By  the  remarks  of  Kent,  Ch.  J.  in  Shiefflin  v.  New 
York  Insurance  Company,2  it  clearly  appears,  that  when  a 
vessel  is  detained  without  the  fault  of  the  master,  the  master 
ought  to  procure  other  means  to  send  on  the  cargo  ;  and  this 
doctrine  of  course  applies  to  all  cases  of  disability  and  de- 
tention of  vessels  occasioned  by  the  act  of  God.3  In  South 
Carolina,  it  has  been  held,  that  a  boat  lost  by  running  on 
an  unknown  and  concealed  snag  in  the  regular  channel 
of  the  river,  may  fall  within  the  excepted  perils ;  4  but  it  is 
also  held,  in  that  State,  that  whether  the  duties  of  the  mas- 
ter and  owners  cease  or  not,  by  that  catastrophe,  depends  on 
the  determination  of  the  jury.  In  an  action  of  assumpsit 
in  the  Court  of  Appeals  of  South  Carolina,  against  the  de- 
fendants, owners  of  a  steamboat,  for  the  value  of  certain 
goods  shipped  by  the  plaintiffs,  and  alleged  to  have  been 
lost  on  board  the  said  steamboat,  plying  on  the  Pedee  River, 
the  defence  set  up  was,  that  the  boat  sunk  by  running  on  a 
concealed  and  unknown  snag,  in  the  ordinary  boat  channel, 
when  the  river  was  fairly  navigable  for  steamboats  ;  and 
that  the  loss  which  followed,  was  not  in  consequence  of  any 
want  of  prudence  and  diligence,  on  the  part  of  the  master 
and  owners.  There  was  much  testimony  offered  on  both 
sides  ;  by  the  defendants  to  sustain,  and  by  the  plaintiffs  to 
repel  the  grounds  of  excuse  set  up  :  and,  in  some  respects, 
the  evidence  was  conflicting  and  contradictory.  The  plain- 
tiffs insisted  especially,  that  the  defendants  had  been  guilty 
of  negligence  after  the  steamer  struck  and  went  down,  in 
not  rescuing  the  goods  and  forwarding  them  to  their  desti- 
nation. Upon  this  part  of  the  case,  the  presiding  Judge 


1  Faulkner,  &c.  v.  Wright,  &c.  1  Rice,  (S.  C.)  R.  107. 

2  Shiefflin  v.  New  York  Ins.  Co.  9  Johns.  (N.  Y.)  R.  21. 

3  See  on  this  subject,  opinion  of  Woodworth,  J.,  in  Treadwell  v.  Union 
Ins.  Co.  6  Cow.  (N.  Y.)  R.  270  ;  Bryant  v.  Commonwealth  Ins.  Co. 
6  Pick.  (Mass.)  R.  143 ;  Cheviot  v.  Brook,   1  Johns.   (N.  Y.)  R.  364  ; 
Manning  v.  Newnham,  2  Camp.  R.  624. 

4  Smyrl  v.  Niolon,  2  Bail.  (S.  C.)  R.  421. 


CH.  VI.]        RESPONSIBILITY   OF  COMMON   CARRIERS.  189 

charged  the  jury,  — "  that  the  duties  of  the  master  and 
owners  did  not  cease  with  the  catastrophe  which  arrested 
and  detained  the  boat,  whereby  the  cargo  became  damaged  ; 
but  that  they  might  be  held  liable  for  damages,  arising 
from  want  of  diligence  and  proper  exertions  towards  sav- 
ing and  delivering  the  goods  on  board,  and  that  the  jury 
might  regard,  as  a  proper  standard  of  such  diligence,  such  a 
line  of  conduct  as  a  prudent  man  of  intelligence  would 
have  observed  in  taking  care  of  his  own  property,  similarly 
situated."  The  jury  found  for  the  defendants,  and  a  motion 
for  a  new  trial  was  refused.  But  Richardson,  J.  dissented, 
and  considered,  that,  under  the  circumstances,  the  case 
should  be  sent  back  to  be  reconsidered  by  the  jury.1  The 
general  doctrine,  however,  clearly  is,  that,  if  by  reason  of 
stranding,  or  some  other  unexpected  cause,  it  becomes  im- 
possible to  convey  the  cargo  safely  to  its  destination  in  his 
own  vessel,  the  master  is  to  do  what  a  prudent  man  would 
think  most  for  the  benefit  of  all  concerned.2  Transshipment 
to  the  place  of  destination,  if  it  be  practicable,  is  the  first 
object,  because  that  is  the  furtherance  of  the  original  object. 
If  that  be  impossible,  a  return  or  safe  deposit  may  be  expe- 
dient,3 and  the  merchant  should,  if  possible,  be  consulted.4 

§  188.  But   the   unambiguous   terms  and  the  universally 
admitted  policy  of  the  rule  of  responsibility  of  common  car- 


1  Faulkner,  &c.  v.  Wright,  &c.  ub.  sup. 

2  Smith,  Mer.  Law,  180. 

3  Liddard  v.  Lopes,  10  East,  R.  526. 

4  Wilson  v.  Millar,  2  Stark.  R.  1.     A  sale  is  the  last  thing  the  master 
should  think  of,  because  it  can  only  be  justified  by  that  necessity  which 
supersedes  all  human  laws  ;  if  he  sells  without  necessity,  his  owners,  as 
well  as  himself,  will  be  answerable  to  the  merchant.     Freeman  v.  East 
India  Co.  5  B.   &  Aid.  R.  617 ;  Wilson  v.  Dickson,  2  Ib.  2.     Still  the 
master's  authority  extends  to  hypothecate,  or  even  to  sell  a  part  of  it, 
where  it  is  necessary  to  do  so  for  repairs,  in  order  to  the  preservation  of 
the  entire  venture.     See  case  of  Brig  Sarah  Ann,  2  Surnn.  (Cir.  Co.)  R. 
206  ;  Brown  v.  Lull,  Ib.  443. 


190  LAW   OF   CARRIERS.  [CH.  VI. 

riers,  include  not  only  damage  occasioned  by  the  act  of  God 
as  operating  upon,  or  as  secondary  to,  the  negligence  or 
misfeasance  of  the  carrier  or  his  servants,  but  extend  to  the 
intervention  of  the  agency  of  a  third  person  :  although,  it 
has  appeared,  that  there  have  been  cases  arising  upon  excep- 
tions in  bills  of  lading  of  "  perils  of  the  sea,"  where,  in  addi- 
tion to  losses  by  natural  causes,  those  arising  from  the  acts  of 
third  persons,  are  allowed  to  come  within  that  phrase.1  The 
general  doctrine,  that  a  common  carrier  insures  against  all 
accidents  which  may  or  can  occur  by  the  intervention  of  any 
human  means,  (however  irresistible  they  may  be,)  has  been 
too  long  established  and  too  earnestly  commended,  to  be  now 
limited  to  his  own  acts.2  The  difficulty,  as  has  very  properly 
been  observed,  in  receiving  the  immediate  agency  of  third 
persons,  as  the  act  of  God  or  a  peril  of  the  sea,  in  any  shape, 
is,  that  it  leaves  open  that  very  door  for  collusion,  which 
has  denied  an  excuse  by  reason  of  fire,  theft,  and  robbery.3 
The  true  question  would  seem  always  to  be,  whether  the 
loss  is  to  be  attributed  to  that  inevitable  necessity,  (not  aris~ 
ing-  from  the  intervention  of  man,)  which  no  human  prud- 
ence could  have  avoided.4  In  the  case  of  Forward  v. 


1  See  ante,  §  166. 

2  See  ante,  §  151,  et  seq. 

3  Per  Cowen,  J.,  in  delivering  the  opinion  of  the  Court  in  M' Arthur  v. 
Sears,  21  Wend.  (N.  Y.)  R.  190. 

4  This  rule,  however  apparently  severe,  is  so  established  by  the  policy 
of  the  law,  for  the  security  of  all  persons,  the  necessity  of  whose  affairs 
obliges  them  to  trust  those  sorts  of  persons  (common  carriers)   in  the 
course  of  their  dealings  ;  for  else  these  carriers  might  have  an  opportunity 
of  ruining  them  by  fraudulently  combining  with  thieves,  &c.,  and  yet  doing 
it  in  so  clandestine  a  manner  as  might  hardly  be  possible  to  be  discovered. 
In  support  of  the  same  rule  of  policy,  "  every  thing  is  a  negligence  in  the 
carrier  or  hoyman,  &c.  from  the  moment  he  receives  the  goods  into  his  cus- 
tody, which  the  law  does  not  excuse  ;  and  to  prevent  collusive  litigation, 
and  the  necessity  of  going  into  circumstances  impossible  to  be  unravelled, 
the  law  always  presumes  against  the  carrier,  unless  he  shows  the  injury 
to  have  been  done  by  the  king's  enemies,  or  by  such  act  as  could  not  hap- 
pen by  the  intervention  of  man,  as  storms,  lightnings,  tempests,  &c.    And 


CH.  VI.]          RESPONSIBILITY   OF   COMMON    CARRIERS.  191 

Pittard,1  which  has  been  already  referred  to,2  where  a  fire 
broke  out  a  hundred  yards  from  the  carrier's  booth,  where 
he  had  placed  the  goods  for  safe  custody,  and  they  were 
destroyed  by  the  fire,  the  carrier  was  held  by  Lord  Mans- 
field to  be  liable,  though  the  fire  was  without  actual  negli- 
gence on  his  part.  It  may  be  said,  that  fire  is  an  inevitable 
accident ;  but  looking  to  the  policy  of  the  law,  it  is  not  so 
regarded.  Being  by  the  act  of  man,  it  may  be  collusive, 
that  in  the  confusion  depredations  may  be  committed  ;  and 
as  there  is  a  possibility  of  the  carrier  being  participant  in 
the  crime,  the  risk  is  on  them  ;  or,  at  least,  the  responsi- 
bility leads  to  a  wholesome  degree  of  care,  which  might 
otherwise  be  utterly  unobserved.3 

§  189.  So  it  has  never  been  doubted,  that  the  carrier  is 
liable  for  the  tJieft  of  a  third  person,  whatever  apparently 
may  have  been  the  care  of  his  agent  in  guarding  the  goods 
stolen  while  in  his  custody.4  Thus,  if  money  is  delivered  to 
the  master  of  a  steamboat,  who  is  accustomed  to  carry  it  for 
hire,  as  the  agent  of  the  owner  of  the  vessel,  and  while  his 
vessel  is  lying  in  the  dock,  the  cabin  is  forcibly  broken  open, 
in  the  absence  of  him  and  his  crew,  and  the  money  is  stolen 
out  of  his  trunk  ;  the  owner  of  the  vessel,  although  no  actual 
fault  or  fraud  is  imputable  to  the  master,  is  answerable  for  the 


the  reason  why  these  acts  only  are  held  not  to  charge  carriers,  seems  to 
be,  that  as  they  are  not  under  the  control  of  the  contracting  party,  they 
ought  not  to  affect  the  contract,  inasmuch  as  he  only  engages  against 
those  events  which  by  possibility  and  due  diligence  he  may  prevent. 
These  rules,  though  said  to  be  founded  in  custom,  have  yet  always  been 
considered  to  be  of  Common  Law."  See  Jeremy  on  Carr.  56. 

1  Forward  v.  Pittard,  1  T.  R.  27. 

2  See  ante,  §  156. 

3  See  1  Bell,  Comm.  379.     And  see  ante,  §  157,  as  to  loss  of  steam- 
boats by  fire. 

4  Coggs  v.  Bernard,  Appx.  p.  i.  ;  2  Salk.  R.  919;  Rich  v.  Kneeland, 
Cro.  Jac.  R.  330. 


192  LAW   OF   CARRIERS.  [CH.  VI. 

loss.1  It  was  indeed  long  ago  held,  in  an  action  against  the 
master  of  a  ship  for  goods  delivered  into  his  custody,  and 
which  were  stolen  from  the  ship  by  persons  pretending  them- 
selves to  be  officers  with  a  warrant  to  search,  that  the  carrier 
was  not  excused.2  In  an  action  on  a  bill  of  lading  signed  by 
the  defendant,  as  master  of  a  ship,  it  appeared,  that  the  goods 
were  shipped  at  Liverpool  in  good  order,  and  consigned  to 
the  plaintiff.  On  the  arrival  of  the  ship  in  New  York,  it  was 
found  that  several  of  the  trunks  had  been  opened,  and  the 
goods  taken  out ;  and  it  was  admitted,  that  the  goods  had 
been  embezzled,  or  otherwise  lost,  without  any  fraud  on  the 
part  of  the  defendant.  The  master  was,  nevertheless,  held 
to  answer  for  the  value  of  the  lost  property,  in  accordance 
with  the  rule,  in  furtherance  of  the  general  policy  of  the 
marine  law,  which  holds  the  master  responsible,  as  a  common 
carrier,  for  all  accidents,  and  all  causes  of  loss,  not  coming 
within  the  exception  in  the  bill  of  lading.3 

§  190.  Again,  where  the  owner  of  a  ship  received  on 
board  at  New  York,  a  quantity  of  goods  to  be  carried  to 
London,  and  on  the  arrival  of  the  ship  the  goods  were  re- 
fused admission,  being  prohibited  by  the  laws  of  England, 
and  the  consignee  and  master  agreed  that  the  goods  should 
remain  on  board,  and  be  returned  to  the  shippers  in  New 
York,  at  their  risk,  they  paying  the  freight  from  London  ; 
and  an  indorsement  was  made  on  the  bill  of  lading  to  that 
effect ;  it  was  held,  that  the  ship  owner  was  responsible  for 
the  embezzlement  of  any  part  of  the  goods,  between  the 
time  of  their  first  shipment  at  New  York,  and  their  return 
there,  although  English  custom-house  officers  were  on  board, 
during  the  time  the  vessel  was  in  London,  and  although  they 
may  have  embezzled  the  goods,  and  not  the  master,  or  crew, 


1  Kemp  v.   Coughtry,  11  Johns.  (N.  Y.)  R.  107,  and  cited  more  fully 
ante,  104. 

2  Mors  v.  Slue,  1  Ventr.  R.  190,  238,  and  cited  ante,  §  129. 

3  Watkinson  v.  Laughton,  8  Johns.  (N.  Y.)  R.  213. 


CH.  VI.]          RESPONSIBILITY   OF   COMMON  CARRIERS.  193 

or  any  person  within  their  knowledge.  The  master's  duty 
was  to  guard  against  such  accidents,  and  his  neglect  to  do 
it,  or  his  misfortune  in  not  detecting  the  theft,  throws  upon 
him  the  loss,  because  it  was  a  risk  he  had  assumed  ;  and  to 
admit  the  latter  excuse  by  the  master,  would  be  opening,  in 
the  opinion  of  the  Court,  "  all  the  evils  to  be  apprehended 
from  fraudulent  combinations  and  collusions  between  the 
master  and  the  crew,  and  other  persons,  which  it  was  the 
policy  of  the  law  to  prevent."  1 

§  191.  Indeed,  not  only  so,  but  the  carrier  is  even  an- 
swerable for  the  irresistible  force  and  violence  of  robbers  and 
mobs.2  Though  the  force,  says  Lord  Holt,  in  Coggs  v.  Ber- 
nard,3 "  be  never  so  great,  as  if  an  irresistible  multitude  of 
persons  should  rob  him  (the  carrier,)  he  is  nevertheless 
chargeable."  Lord  Mansfield,  in  Forward  v.  Pittard,4  puts 
the  case  of  the  riot  in  London,  of  1780,  by  which  the  great 
destruction  of  property  in  that  city  could  not  be  prevented 
by  a  considerable  military  force,  as  even  an  instance  which 
could  not  be  received  to  protect,  in  that  capacity,  a  common 
carrier.  It  was  held  by  the  same  learned  Judge,  that  the 
master  of  a  ship  on  board  of  which  goods  have  been  laden, 
in  the  river  Thames  for  a  foreign  port,  is  liable  for  the  loss 
of  the  goods  occasioned  by  a  forcible  robbery  while  the  ship 
is  lying  in  the  river.  "At  first,"  said  he,  in  giving  judg- 
ment, "  the  rule  appears  to  be  hard,  but  it  is  settled  on  prin- 
ciples of  policy,  and  when  once  established,  every  man  con- 
tracts with  reference  to  it,  and  there  is  no  hardship  at  all."  5 

1  Shieffelin  v.  Harvey,  6  Johns.  (N.  Y.)  R.  170.     This  case  is  distin- 
guishable from  cases  where  it  has  been  held,  that  during  the  period  of 
detention  by  captors,  as  prize,  or  by  the  belligerent,  for  adjudication,  all  the 
responsibilities  of  the  master  and  crew  are  suspended.     And  see  Evans  v. 
Hutton,  5  Scott,  N.  R.  670. 

2  See  ante,  ^  149. 

3  Coggs  v.  Bernard,  Appx.  p.  i. ;  2  Salk.  R.  919. 

4  Forward  v.  Pittard,  i  T.  R.  27. 

5  Barclay  v.  Y.  Gana,  3  Doug.  R.  389,  cited  1  T.  R.  33,  nomine  Bar 
clay  v.  Heygena. 

17 


194  LAW   OF   CARRIERS.  [CH.  VI. 

§  192.  That  the  doctrine  which  imposes  the  liability  of 
common  carriers,  where  the  loss  of  goods  is  occasioned  by 
human  agency,  whether  it  be  that  of  the  carrier  or  his  ser- 
vants alone,  or  the  immediate  agency  of  third  persons, 
applies  as  well  to  carriers  by  water,  both  inland  and  foreign, 
as  to  carriers  by  land,1  we  may  instance  the  case  of  the 
defective  rudder,  to  which  attention  has  been  already  called  : 
A  man  hires  his  vessel  to  be  repaired  by  a  skilful  workman, 
who  makes  a  rudder  apparently  sound,  but  which  is  inter- 
nally rotten,  and  a  loss  happens  by  reason  of  its  breaking 
by  the  force  of  the  sea,  the  owner  is  liable,  although  he  was 
ignorant  of  the  defect.2  It  follows,  indeed,  directly  from  the 
position,  that  the  master  and  owner  of  a  general  freighting 
ship  are  common  carriers,  that  if  there  should  prove  to  be  a 
latent  defect  in  a  vessel,  and  one  undiscoverable  upon 
examination,  (and  it  may  be  the  fault  of  the  builder,)  that 
the  owner  of  the  vessel  must  answer  for  the  damage  occa- 
sioned by  the  defect.8 

§  193.  The  doctrine  is  distinctly  laid  down  by  Lord  Ten- 
terden,  that  in  considering  whether  a  common  carrier  by 
water  is  chargeable  with  any  particular  loss,  the  question  is 
not  whether  the  loss  happened  by  reason  of  the  negligence 
of  persons  employed  in  the  conveyance  of  the  goods ;  but 
whether  it  was  occasioned  by  any  of  those  causes  which, 
either  according  to  the  general  rules  of  law,  or  the  particular 
contract  of  the  parties,  afford  an  excuse.4  In  support  of  his 
position,  the  learned  author  has  cited  the  case  of  Gosling  v. 
Higgins,  in  which  it  was  held,  that  the  master  and  owner  of 


1  That  carriers  by  water,  both  inland  and  foreign,  are  liable  as  common 
carriers,  in  all  the  strictness  and  extent  of  the  Common  Law  rule,  see  ante, 
§  80,  87,  88,  and  Abbott  on  Shipp.  Pt.  4,  ch.  6,  p.  389,  5th  edit. 

8  Backhouse  v.  Sneed,  1  Murph.  (N.  C.)  R.  173,  and  cited  ante,  6  171. 

3  3  Kent,  Comrn.  205,  and  note  (1)  to  Story's  Ed.  of  Abbott  on  Shipp. 
p.  341,  and  Ib.  p.  394,  note  (1)  5th  edit. 

*  Abbott  on  Shipp.  p.  382,  383. 


CH.  VI.]         RESPONSIBILITY   OF   COMMON   CARRIERS.  195 

a  ship  were  answerable  for  the  loss  of  the  goods  occasioned 
by  the  seizure  of  the  ship  by  the  officers  of  the  revenue, 
for  a  supposed  violation  of  the  revenue  laws,  although  in 
the  result  of  the  proceedings  under  the  seizure,  it  may  ap- 
pear, that  there  was  no  cause  for  condemnation.1  So,  proba- 
bly, says  the  same  learned  author,  the  master  and  owners 
would,  by  the  Common  Law,  be  answerable  for  a  loss 
arising  from  the  negligence  or  misconduct  of  a  local  pilot  on 
board,  to  whom  the  direction  of  the  ship  was  necessarily 
intrusted  ; 2  though  this  responsibility  (in  certain  cases  at 
least)  is  now  taken  away  by  act  of  Parliament.3 


1  Gosling  v.  Higgins,  1  Campb.  R.  451.     This  was  an  action  against 
the  owner  of  a  vessel,  for  non-delivery  of  ten  pipes  of  wine,  shipped  at 
Madeira,  to  be  carried  to  Jamaica  and   thenpe  to  England.     The  ship  was 
detained  at  Jamaica,  for  a  supposed  violation  of  the  revenue  laws,  but  on 
appeal,  the  sentence  of  condemnation  was  reversed,  and  it  was  said  by 
Lord  Ellenborough,  "  You  have  an  action  against  the  officers.     The  ship- 
per can  only  look  to  the  owner  or  master  of  a  ship."     S.  C.  Jeremy  on 
Carr.  p.  66,  67. 

2  He  cites  the  opinion  of  the  Ch.  J.  in  Bowcher  ».  Noidstrom,  1  Taunt. 
R.  568. 

3  Stat.  6  Geo.  IV.  c.  125,  s.  55.     The  American  authorities,  on  the  sub- 
ject of  pilots  and  pilotage,  are  thus  given  by  the  learned  annotators  to  the 
fifth  American  Edition  of  Abbott  on  Shipping,  p.  210  ;  "  While  a  pilot 
is  on  board,  who  is  regularly  appointed,  he  has  the  absolute  and  exclusive 
control  of  the  ship  in  the  absence  of  the  master,  and  is  considered  as 
master  pro  hoc  vice;  and  consequently  the  master  is  not  liable  for  any 
injury  happening  to  another  vessel  by  the  fault  or  negligence  of  the  pilot 
during  his  absence,  whatever  might  be  the  case,  if  he  were  present  at  the 
time  of  the  injury.     Snell  v.  Rich,  1  John.  R.  305  ;  Yates  v.  Brown, 
8  Pick.  23  ;  3  Kent,  (5th  edit.)  176.     Whether  the  owner  would  in  such 
case  be  liable  for  such  injury,  was  a  question  left  undecided  by  the  Court 
in  the  case  above  cited.     In  Bussey  v.  Donaldson,  4  Ball.  R.  206,  it  was, 
however,  decided  that  the  owner  is  liable  for  such  injury,  although  the 
pilot  is  a  public  pilot  of  the  port ;  and  that  the  measure  of  compensation 
ought  to  be  equivalent  to  the  injury.     And  such  would  seem  to  be  the 
opinion  of  the  Court  in  Fletcher  v.  Braddick,  5  Bos.  &  Pull.  182,  as  it 
certainly  was  in  The  Neptune  the  Second,  1  Dodson,  R.  467.     A  pilot, 
while  he  has  charge  of  the  vessel,  is  the  agent  of  the  owner.    Yates  v. 
Brown,  8  Pick.  23.     The  owner  of  a  vessel,  which,  through  the  fault  or 


196  LAW   OF   CARRIERS.  [CH.  VT. 

§  194.  If  a  common   carrier  by  water,  in  proceeding  in 
the  unloading  of  his  vessel,  uses  the  tackle  or  machinery  of 

negligence  of  any  one  on  board,  injures  another  vessel  by  running  foul  of 
her,  is  liable  to  the  injured  party,  although  there  be  a  pilot  on  board,  who 
has  the  entire  control  and  management  of  the  vessel.  Ib.  See  Pilot  Boat 
Washington  v.  Ship  Saluda,  U.  States  Dist.  Ct.  S.  C.  April,  1831  ; 
Williamson  v.  Price,  16  Martin  (Lou.)  R.  399  ;  3  Kent,  (5th  edit.)  175, 
176.  The  owner  must  seek  his  remedy  against  the  pilot,  who  is  answer- 
able as  strictly  as  if  he  were  a  common  carrier,  for  his  default,  negligence, 
or  unskilfulness.  See  Yates  v.  Brown,  8  Pick.  23,  24  ;  3  Kent,  (5th 
edit.)  176.  Whether  the  owners  are  liable  for  the  acts  of  the  pilot  when 
the  master  is  compelled  by  statute  to  take  him  on  board,  see  Attor.-Gen. 
v.  Call,  3  Price,  302  ;  Mackintosh  v.  Slade,  6  B.  &  C.  657;  The  Chris- 
tiana, 2  Hagg.  Adm.  183 ;  Curtis's  Merchant  Seamen,  195,  196,  note. 
In  a  case  where  a  steamboat  was  hired  for  the  purpose  of  towing  a  vessel 
to  which  she  was  fastened,  and  both  were  under  the  direction  of  a  licensed 
pilot,  the  owner  of  the  steamboat  was  held  not  entitled  to  damages  on 
account  of  injury  sustained  in  the  course  of  the  navigation,  and  not  caused 
by  undue  negligence  of  the  pilot.  Reeves  v.  The  Ship  Constitution, 
Gilpin,  R.  579.  Where  the  injury  happens  on  the  sea,  &c.,  there  is  a 
familiar  remedy  for  it  in  the  Admiralty,  in  a  suit  for  collision.  The 
Thames,  5  Rob.  308  ;  The  Neptune  the  Second,  1  Dods.  R.  467 ;  The 
Woodrop  Sims,  2  Dods.  R.  83 ;  The  Dundee,  1  Hagg.  Adm.  R.  109  ; 
Gale  v.  Laurie,  5  Barn.  &  Cressw.  156.  The  neglect  to  take  a  pilot, 
where  it  ought  to  be  done,  will  subject  the  owners  to  a  suit  for  the  damages 
that  may  happen  to  shippers  and  others  by  such  default.  See  M'Millan 
v.  U.  Ins.  Co.  1  Rice  (S.  C.)  R.  248 ;  Keeler  v.  Fireman  Ins.  Co.  3  Hill, 
250 ;  3  Kent,  (5th  edit.)  176,  note.  And  if  captors  neglect  to  take  a 
pilot  on  board,  and  the  captured  ship  be  lost  in  consequence  of  the  neglect, 
a  Court  of  Admiralty  will  decree  restitution  in  value  against  them.  The 
William,  6  Rob.  R.  316.  Of  course  pilots  themselves  are  responsible  for 
any  damages  occasioned  by  their  own  negligence  or  default.  (3  Kent,  5th 
edit.  p.  176,)  and  are  entitled  to  a  proper  compensation  for  their  services. 
See  Laws  of  Oleron,  art.  23  ;  Molloy,  B.  2,  ch.  9,  §  3,  7  ;  Gardner  ». 
Ship  New  Jersey,  1  Peters,  Adm.  R.  223,  227  ;  The  Schooner  Anne, 
1  Mason,  R.  508.  Pilots,  like  other  persons,  may  entitle  themselves  to 
salvage  by  performing  services  beyond  the  mere  line  of  their  duty.  Dulany 
v.  The  Sloop  Pelagio,  Bee's  Adm.  R.  212  ;  Hobart  v.  Drogan,  10  Peters, 
108  ;  Hand  v.  The  Elvira,  Gilpin,  60  ;  The  Joseph  Harvey,  1  Rob.  Adm. 
306  ;  The  Gen.  Palmer,  2  Hagg.  Adm.  R.  176  ;  The  City  of  Edinburgh, 
Ib.  333.  A  suit  lies  in  the  Admiralty  for  compensation  for  pilotage  per- 
formed on  the  high  seas.  The  Schooner  Anne,  1  Mason,  R.  508.  The 
pilot  is  a  mariner,  Ib.  See  Hobart  v.  Brogan,  10  Peters,  108." 


CH.  VI.]         RESPONSIBILITY  OF   COMMON   CARRIERS.  197 

a  third  person,  as  in  hoisting  the  goods  from  the  vessel,  and 
the  tackle  or  machinery  breaks,  and  the  goods  are  in  conse- 
quence injured  ;  the  carrier  is  responsible.1 

§  195.  In  a  case  somewhat  remarkable  in  its  circum- 
stances, an  action  was  brought  against  the  master  of  a  vessel 
navigating  the  river  Ouse  and  Humber  from  Selby  to  Hull, 
by  a  person  whose  goods  had  been  wet  and  spoiled.  At  the 
trial  it  appeared  in  evidence,  that  at  the  entrance  of  the 
harbor  at  Hull,  there  was  a  bank  on  which  vessels  used  to 
lie  in  safety,  but  of  which  a  part  had  been  swept  away  by 
a  great  flood  some  short  time  before  the  misfortune  in  ques- 
tion, so  that  it  had  become  perfectly  steep,  instead  of  shelv- 
ing towards  the  river ;  that  a  few  days  after  this  flood,  a 
vessel  sunk  by  getting  on  to  this  bank,  and  her  mast,  which 
was  carried  away,  was  suffered  to  float  in  the  river  tied  to 
some  part  of  the  vessel ;  and  that  the  defendant,  upon  sailing 
into  the  harbor,  struck  against  the  mast,  which,  not  giving 
way,  forced  the  defendant's  vessel  towards  the  bank,  where 
she  struck,  and  would  have  remained  safe,  had  the  bank 
been  in  its  former  situation,  but  on  the  tide  ebbing,  her  stern 
sunk  into  the  water,  and  the  goods  were  spoiled ;  upon 
which  the  defendant  tendered  evidence  to  show,  that  there 
had  been  no  actual  negligence.  This  evidence  was  rejected  ; 
and  it  was  further  ruled,  that  the  act  of  God  which  could 
excuse  the  defendant,  must  be  immediate  ;  but  this  was  too 
remote  ;  and  the  jury  were  directed  to  find  a  verdict  for  the 
plaintiff,  which  they  accordingly  did.  The  case  was  after- 
wards submitted  to  the  consideration  of  the  Court  of  King's 
Bench,  who  approved  of  the  direction  given  by  Mr.  J.  Heath 
at  the  trial,  and  the  plaintiff  succeeded  in  the  cause.  There 
was  no  bill  of  lading  in  the  case,  and  no  instrument  of  con- 
tract ;  and,  therefore,  the  question  depended  upon  general 
principles,  and  not  upon  the  meaning  of  any  particular 


1  De  Mott  v.  Laraway,  14  Wend.  (N.  Y.)  R.  225. 
17* 


198  LAW   OF    CARRIERS.  [CH.  VI. 

words,  or  exception.1  Now  in  this  case,  the  act  of  God  in 
changing  the  bank,  Avas  left  out  of  the  question,  as  not 
being  the  immediate  cause,  and  therefore  furnishing  no  ex- 
cuse. The  fastening  of  the  mast,  if  not  the  sinking  of  the 
ship  to  which  she  was  attached,  were  the  only  remaining 
causes,  and  one,  if  not  both,  were  obstructions  placed  there 
by  human  agency.2 

§  196.  Where  the  ship  of  a  common  carrier,  in  a  voyage 
from  Hull  to  Gainsborough,  drove  on  to  an  anchor  in  the 
river  Trent,  and  was,  in  consequence,  sunk,  and  the  goods 
on  board  injured,  and  the  accident  was  occasioned  by  the 
neglect  of  the  third  party,  in  not  having  his  buoy  out  to 
mark  the  place  where  his  anchor  lay,  it  was  held,  that  the 
carrier  was  bound  to  make  good  the  loss.3 

§  197.  In  M' Arthur  v.  Sears,  in  New  York,  the  doctrine, 
that  evidence  of  care,  in  case  of  loss  proceeding  from  the 
intervention  of  man,  and  the  agency  of  a  third  party,  is 
inadmissible,  is  fully  sustained  and  supported  by  an  elabo- 


1  Smith  v.  Shepherd,  cited  in  Abbott  on  Shipp.  p.  384,  as  having  been 
first  tried  at  the  Summer  Assizes  for  Yorkshire,  1795,  and  the  plaintiff 
was  nonsuited,  the  Judge  being  of  opinion,  that  no  case  of  negligence 
was  proved.     The  nonsuit  was  set  aside  by  the  Court  of  King's  Bench, 
and  a  new  trial  granted,  that  the  facts  might  be  more  fully  inquired  into. 
The  account  in  the  text  is  the  evidence   given  at  the  second  trial.     In 
Easter  Term  following,  a  new  trial  was  moved  for,  but  a  rule  to  show 
cause  refused. 

2  See  opinion  of  Cowen,  J.,  in  M'Arthur  v.  Sears,  21  Wend.  (N.  Y.) 
R.  190. 

3  Proprietors  of  Trent  and  Mersey  Navigation  v.  Wood,  3  Esp.  R.  127; 
S.  C.  4  Doug.  R.  287,  cited  in  Story  on  Bailm.  §  518,  where  it  seems  to 
be  considered,  that  both  parties  were  guilty  of  negligence ;  the  one  in 
leaving  his  anchor  without  a  buoy  ;    the  other,  in  not  avoiding  it,  as, 
when  he  saw  the  vessel  in  the  river,  he  must  have  known,  that  there 
was  an  anchor  near  at  hand.     Indeed,  it  is  true,  that  all  the  Judges 
intimated,   that  there  was  some    slight   degree   of  negligence  in   the 
defendant. 


CH.  VI.]         RESPONSIBILITY   OF  COMMON   CARRIERS.  199 

rate  opinion  of  the  Court,  delivered  by  Mr.  J.  Cowen.  It 
was  an  action  against  the  owners  of  a  steamboat,  as  common 
carriers,  where  the  boat  stranded  on  entering  the  harbor  in 
the  night  time,  in  consequence  of  the  master  mistaking 
the  light  upon  a  stranded  vessel  for  a  light  usually  exhibited 
by  the  keeper  of  the  beacon  light,  by  means  whereof  the 
plaintiffs  sustained  damage.  It  was  held,  that  nothing  would 
excuse  the  carrier,  except  the  two  ordinary  excepted  cases, 
"  inevitable  accident "  loithout  the  intervention  of  man,  and 
the  acts  of  public  enemies  ;  that  neither  of  these  exceptions 
existed  in  this  case  ;  and  that  proof  of  the  utmost  vigilance 
on  the  part  of  the  master  was  irrelevant  and  inadmissible  in 
defence  of  the  action.1 

§  198.  A  buoy,  it  has  been  held,  is  a  mere  artificial  and 
movable  mark  of  the  proper  channel,  and  to  permit  it  to  be 
classed  among  inevitable  perils  or  acts  of  God,  that  cause 
and  excuse  a  stranding,  would  be  opposed  to  the  policy  of 
the  law  against  common  carriers,  and  would  commence  the 
application  to  them  of  another  species  of  bailment,  viz.  that  of 
carrying  for  hire  by  private  conveyance,  and  not  as  common 
carriers.2  In  this  case,  the  plaintiff  shipped  goods  on  board 
a  vessel  belonging  to  the  defendant,  which,  by  the  bill  of 
lading,  were  to  be  delivered  in  Georgetown  (S.  C.,)  "  the 
dangers  of  the  sea  only  excepted  ;  "  but  which  the  consignee 
refused  to  receive  in  consequence  of  their  damaged  con- 
dition. In  an  action  for  the  loss  of  the  goods,  the  defence 
was,  that  the  loss  of  the  vessel  was  occasioned  by  the  shift- 
ing- of  a  buoy,  which  had  been  placed  in  a  particular  posi- 
tion, to  indicate  a  particular  channel.  The  proof  was,  that 
the  buoy  was  in  its  proper  place,  when  the  master  left  the 
port,  but  sometimes  drifted,  and  which  had  actually  occurred, 
to  the  extent  of  one  hundred  and  fifty  or  two  hundred  yards, 
some  ten  or  fifteen  days  before  the  vessel  was  stranded  ; 

1  M' Arthur  u.  Sears,  21  Wend.  (N.  Y.)  R.  190. 
Reaves  v.  Waterman,  2  Speer  (S.  C.)  R.  197,  Evans,  J.  dissenting. 


200  LAW  OP  CARRIERS.  [CH.  VI. 

that  the  master,  in  approaching  the  harbor,  steered  for  the 
buoy,  which  was  visible,  supposing  it  to  be  where  he  had 
left  it ;  that  within  a  few  lengths  of  the  vessel  of  this  object, 
and  upon  perceiving  that  it  was  wrong,  he  attempted  to 
turn  his  vessel,  but  in  so  doing,  her  keel  struck,  by  which 
the  loss  was  occasioned.  It  was  held,  that  the  excuse  set 
up  by  the  defendant,  did  not  constitute  one  of  those  perils 
that  come  within  the  proper  meaning  of  the  exception,  as  to 
the  liability  of  common  carriers,  called  the  "  act  of  God," 
or  the  unavoidable  "  perils  of  the  sea."  1 

§  199.  It  is  true,  that  it  has  been  held,  in  an  action  on  a 
policy  of  insurance,  that  if  in  moving  a  ship  from  one  part 
of  a  harbor  to  another,  it  becomes  necessary  to  send  some  of 
the  crew  on  shore  to  make  fast  a  new  line,  and  to  cast  off  a 
rope,  by  which  she  is  made  fast,  and  these  men  are  im- 
pressed immediately,  before  casting  off  the  rope,  and  thereby 
the  ship  goes  on  shore,  it  is  a  loss  by  the  perils  of  the  sea.2 
This  decision  has,  however,  as  applicable  to  common  car- 
riers, been  called  in  question.  In  M' Arthur  v.  Sears,  it 
seemed  to  the  Court  clear,  that  such  an  act  as  the  sudden 
impressment  of  seamen,  could  not  be  received  to  exempt  a 
common  carrier,  either  as  the  "  act  of  God,"  or  the  "  enemies 


1  In  an  action  against  the  owner  of  a  sloop  to  recover  from  him,  as 
common  carrier,  for  goods  shipped  and  lost,  the  charge  of  the  presiding 
Judge  in  the  Court  below,  was,  that,  from  the  contract  with  a  common 
carrier,  where  loss  is  shown,  the  burden  of  proof  is  upon  the  defendant 
to  show  such  act  of  God,  or  public  enemy,  as  will  excuse  him  ;  that  it  is 
not  a  question  of  fault,  as  the  liability  of  a  carrier  may  attach  when  he  is 
wholly  faultless  ;  that  it  was  for  the  jury  to  decide  from  the  testimony, 
whether  the  loss  was  from  a  natural  cause,  which  no  human  prudence 
could  avert.     On  appeal,  the  charge  was  held  correct.     Ross  v.  Callender, 
2  Speer  (S.  C.)  R.  393.     In  Lawrence  v.  M'Gregor,  in  Ohio,  Wright,  J. 
at  nisi  prius,  charged,  that  by  whatever  degree  of  negligence  another  boat 
might  run  down  the  carrier's,  this  formed  no  excuse.     Wright,  (Ohio)  R. 
193. 

2  Hodgson  v.  Malcom,  5  Bos.  &  Pull.  R.  336. 


CH.  VI.]  RESPONSIBILITY   OF   COMMON  CARRIERS.  201 

of  the  state  ;  "  for,  although  it  may  be  irresistible,  yet  so  it 
is  with  many  acts  merely  human,  which  may  be  collusively 
committed.1  That  the  carrier  is  an  insurer  to  subserve  the 
purposes  of  justice  in  any  one  particular  case,  indeed,  cannot 
be  contended,  for  the  authorities  are  clear  and  uniform,  that 
the  law  regards  him  as  an  insurer  to  subserve  the  purposes 
of  policy  and  convenience;  and  the  one  is  to  remove  all 
temptation  to  confederate  with  thieves  and  robbers ;  and  the 
other  to  relieve  the  owner  of  the  property  from  the  necessity 
of  proving  any  such  confederacy.2 

§  200.  SECONDLY.  As  to  losses  by  the  "  king's  enemies," 
or  the  "  enemies  of  the  state,"  who  are  sometimes  called  the 
"  public  enemy."  By  these  expressions,  in  the  sense  of  the 
law,  are  understood  public  enemies  with  whom  the  nation  or 
state  is  at  open  war  ;  3  and  likewise  pirates  on  the  high  seas, 
who  are  universally  treated  as  the  enemies  of  all  mankind, 
and  who  are  doomed  to  be  treated  and  punished  accordingly 
by  the  laws  of  civilized  nations.4  The  government  itself  is 
called  upon  to  protect  its  subjects  from  losses  by  such  haz- 
ard, inasmuch  as  private  citizens  have  not  the  power  to 
furnish  the  security  and  protection  required.6  But  by  ene- 
mies is  not  to  be  understood  thieves  and  robbers,  who  are 


i  M'Arthurv.  Sears,  21  Wend.  (N.  Y.)  R.  199. 
a  See  the  opinion  of  Gibson,  C.  J.,  in  Hart  v.  Allen,  2  Watts  (Penn.) 
R.  114. 

3  Story  on  Bailm.  $  526. 

4  Ibid,  t)  512,  526  ;    1  Bell,  Comm.  p.  559,  5th  edit.  ;  3  Kent,  Comm. 
216,  299  ;  Pickering  v.  Barclay,  2  Roll.  Abr.  248,  and  Style,  132,  and 
cited  in  Abbott  on  Shipp.  p.  386  ;  Barton  v.  Wolliford,  Comb.  R.  56,  and 
cited  in  Abbott  on  Shipp.  p.  386.     In  note  m  to  the  page  of  Abbott  just 
referred  to,  he  cites  a  passage  from  the  Digest,  showing,  that  the  Roman 
Law  held  a  loss  by  pirates  to  be  a  loss  by  inevitable  casualty  :  <Si  quid  nau~ 
fragio,  out  per  vim  piratarum  perierit ,  non  esse  iniquum,  exceptionem  ei  dari. 
Dig.  4,  9,  3,  1.     (Inde  Labeo  scribit.) 

5  Per  Hubbard,  J.,  in  Thomas  v.  Boston  and  Providence  Railroad  Corp. 
10  Met.  (Mass.)  R.  472. 


202  LAW   OF   CARRIERS.  [cH.  VI. 

merely  private  depredators,  however  much  they  may,  in  a 
moral  sense,  be  at  war  with  society  ;  and  so  rioters  and  in- 
surgents are  not  considered  public  enemies,  in  the  sense  of 
the  law,  upon  this  subject.1 

§  201.  It  has  been  said,  that  here,  the  question  may  often 
become  material,  whether  we  are  to  look  to  the  immediate, 
or  to  the  remote  cause  of  the  loss ;  for  in  some  instances, 
(as  under  the  common  American  bills  of  lading,)  the  "  perils 
of  the  seas  "  are  excepted,  and  not  the  acts  of  "  the  king's 
enemies."  The  case  has  been  supposed,  that  a  carrier  ship 
should  be  driven  by  a  storm  on  an  enemy's  coast,  and  she 
should  there  be  captured  by  the  enemy,  before  she  could  be 
stranded,  it  seems  then,  it  is  said,  that  it  is  a  loss  by  capture, 
as  that  is  the  proximate  cause.  It  is  again  supposed,  that 
the  ship  should  be  first  stranded  on  the  coast  by  the  gale, 
and  in  consequence  thereof,  should  be  afterwards  captured 
by  the  inhabitants :  In  that  case,  it  seems,  it  is  said,  that  it 
would  be  deemed  a  loss,  not  by  capture,  but  by  the  perils 


1  See  ante,  §  191 ;  Mors  v.  Slue,  1  Ventr.  R.  190,  238,  cited  in  Coggs 
v.  Bernard,  2  Ld.  Raym.  R.  909,  Appx.  i.  It  has  been  held,  under  ihe  act 
of  Congress  of  30th  April,  1790,  ch.  36,  §  8,  that  robbery  is  a  substantive 
piracy,  although  the  same  robbery  committed  on  land,  is  not,  by  the  laws 
of  the  United  States,  punished  with  death.  U.  States  ».  Palmer,  3  Wheat. 
(U.  S.)  R.  510;  U.  States  «.  Jones,  3  Wash.  (Cir.  Co.)  R.  209.  The 
true  definition  of  piracy  by  the  law  of  nations,  is  robbery  upon  the  seas. 
U.  States  v.  Smith,  5  Wheat.  (U.  S.)  R.  153;  U.  States  v.  The  Pirates, 
Id.  184.  That  robbers  at  sea  are  pirates,  see  27  Ed.  III.  c.  13,  s.  2  ;  Year 
Book,  2  Rich.  III.  cited  in  note  to  Abbott  on  Shipp.  p.  27.  To  constitute 
piracy,  within  the  above-mentioned  act  of  Congress,  by  running  away  with 
the  vessel,  personal  force  and  violence  are  not  necessary.  It  is  sufficient, 
if  the  running  away  be  with  an  intent  to  convert  the  same  to  the  taker's 
use  against  the  will  of  the  owner,  or  animo  furandi.  U.  Slates  v.  Tully, 
1  Gallis.  (Cir.  Co.)  R.  247  ;  Story's  Note  to  5th  Am.  Ed. ;  Abbott  on 
Shipp.  p.  27.  The  African  States,  having  acquired  the  character  of 
established  governments,  and  having  regular  treaties,  are  not  at  present 
considered  as  pirates.  Case  of  the  Helena,  4  Rob.  (Adm.)  R.  3. 


CH.  VI.]        RESPONSIBILITY   OP  COMMON   CARRIERS.  203 

of  the  sea,  upon  the  same  principle  ;  for  the  gale  is  the  prox- 
imate cause  of  the  stranding.1 

§  202.  It  being  well  established,  as  a  general  rule,  that  no 
other  acts  but  those  which  have  above  been  treated  of  as 
recognized  by  the  law,  will  exempt  a  common  carrier  from 
his  Common  Law  liability,  and  the  loss  or  injury  being 
sufficient  proof  of  negligence  or  misconduct,  or  of  the  in- 
tervention of  human  agency,  the  onus  probandi  is  on  the 
carrier  to  exempt  himself.2  That  the  goods,  in  other  words, 
have  been  delivered  to  the  carrier,  or  his  agent,  and  have 
never  been  delivered  by  him  to  his  employer  or  his  agent  or 
consignee,  is  prima  facie  evidence  of  negligence  or  miscon- 
duct.3 

§  203.  Although  the  general  rule  is,  that  a  common 
carrier  is  responsible  for  loss  or  damage  where  human 
agency  is  the  immediate  or  proximate  cause,  the  question 
may  arise,  how  far  his  responsibility  would  be  affected  by  a 


1  Story  on  Bailm.  §  526,  who  refers  to  Hayn  v.  Corbett,  2  Bing.  R. 
205  ;  Greene  v.  Emslie,  Peake,  R.  212  ;  Waters  v.  Merchants  Louisville 
Ins.  Co.  11  Peters  (U.  S.)  R.  213. 

2  "  Every  thing  is  negligence  which  the  law  does  not  excuse."     Dale 
v.  Hall,  1  Wils.  R.  281  ;  ante,  §  67.     As  to  the  rule  in  respect  to  private 
carriers  for  hire,  see  ante,  §  61. 

3  Jeremy  on  Carr.  126  ;  Story  on  Bailm.  529  ;  2  Greenl.  Ev.  §  219  ; 
Forward  v.  Pittard,   1    T.  R.    27  ;  Riley   v.   Horn.  5   Bing.  R.  217  ; 
Hastings  v.  Pepper,  11  Pick.  (Mass.)   R.  41  ;    Bell  v.  Reed,  4   Binn. 
(Penn.)  R.  127  ;  Clark   &  Co.  v.  Spence,  10  Watts  (Penn.)  R.  335  ; 
Colt  v.  M'Mechen,  6  John.  (N.  Y.)  R.  160  ;  Murphy  v.  Staton,  3  Munf. 
(Va.)  R.  239.     "  It  is  enough  to  show  the  damage  done,  in  order  to  ren- 
der the  common  carrier  liable  ;  and  the  burden  of  proof  is  on  him  to  show, 
that  it  was  occasioned  by  such  cause  as  will  exempt  him  from  liability." 
Per  Harper,  J.,  in  Ewart  v.  Sweet,  2  Bail.  (S.   C.)  R.  161.     See  also 
Smyrl  v.  Niolen,  Ib.  421 ;  Turney  v.  Wilson,  7  Yerg.  (Tenn.)  R.  340  ; 
Whitesides  v.  Russell,  8  Watts  &  S.  (Penn.)  R.  44  ;  Dunseth  v.  Wade, 
2  Scamm.  (111.)  R.  288  ;  Atwood  v.  Reliance  Transp.  Co.  9  Watts  (Penn.) 
R.  87. 


204  LAW  OF   CARRIERS.  [CH.  VI, 

loss  which  would  and  must  have  occurred  without  such  prox- 
imate agency.  There  may  have  been,  for  instance,  on  the 
part  of  the  carrier,  misconduct,  negligence,  or  deviation  from 
duty,  or  his  vessel  may  be  unseaworthy,  and  a  loss  happen 
in  consequence,  and  then,  is  the  carrier  excused  if  it  be 
shown,  that  the  same  loss  must  have  happened  by  light- 
ning ?  Suppose  the  case  of  a  voluntary  deviation  for  so 
short  a  time,  or  under  such  circumstances,  as  that  the  vessel 
must  have  been  overtaken  by  the  same  tempest,  and  the 
same  accident  must  have  occurred,  the  question  would  then 
arise,  whether  the  owner  of  the  vessel  would  be  liable  for 
the  loss.  Again,  a  vessel  may  be  unseaworthy,  and  yet  it 
may  be  clearly  made  to  appear,  that  the  loss  of  goods  on 
board  on  freight,  is  wholly  unconnected  with  the  want  of 
seaworthiness,  as  being  stranded  in  a  hurricane,  or  captured 
by  an  enemy,  is  the  loss  to  be  borne  by  the  carrier,  or  is 
it  to  be  deemed  a  loss  by  perils  of  the  sea,  or  by  the  public 
enemy  ?  In  these  supposed  and  other  like  events,  by  the 
Roman  law,  the  carrier  would  not  be  responsible.1  If  the 
bailee,  to  use  the  Roman  expression,  says  Sir  William  Jones, 
be  in  mora,  that  is,  if  a  legal  demand  have  been  made  by 
the  bailor,  he  must  answer  for  any  casualty  that  happens 
after  the  demand  ;  unless,  in  cases  where  it  may  be  strongly 
presumed,  that  the  same  accident  would  have  befallen  the 
thing  bailed,  even  if  it  had  been  restored  at  the  proper 
time  ;  2  and  the  doctrine  is  supported  by  Pothier.3 

§  204.  It  has  been  said,  that  there  are  (and  certainly  there 
are)  intimations  in  various  Common  Law  authorities  which 
lead  to  a  conclusion  similar  to  the  one  above  mentioned  of  the 
Roman  law  ;  and  by  some  Common  Law  authorities,  the  doc- 
trine of  the  Roman  law  is  directly  sustained  ;  although  the 


1  Story  on  Bailm.  §  413  c. 

2  Jones  on  Bailm.  p.  70. 

3  Pothier,  Pret  a  Usage,  55  to  58  ;  Pothier  on  Oblig.  n.  143,  627,  628  ; 
and  Story,  sup. 


CH.  VI.]          RESPONSIBILITY   OF  COMMON   CARRIERS.  205 

subject  has  been  considered  still  open  to  controversy.1  In  the 
discussion  of  it,  (it  has  been  affirmed  by  very  high  authority,) 
that  it  deserves  consideration,  whether  there  is,  or  ought  to  be, 
any  difference  between  cases,  where  the  misconduct  of  the 
hirer  amounts  to  a  technical  or  an  actual  conversion  of  the 
property  to  his  own  use,  and  cases,  where  there  is  merely 
some  negligence  or  omission  or  violation  of  duty  in  regard  to 
it,  not  conducing  to,  or  connected  with,  the  loss.2 

§  205.  As  to  the  Common  Law  authorities  in  reference  to 
the  doctrine,  that  misconduct,  negligence,  &c.  on  the  part  of 
the  carrier,  not  conducing  to,  or  not  connected  with,  the  loss, 
should  not  make  him  answerable,  it  has  been  said,  that  if 
goods  are  improperly  stowed  on  the  deck  of  a  ship,  and 
they  are  washed  away  by  the  violence  of  the  storm,  the 
owner  of  the  ship  will  be  liable  for  the  loss,  although 
caused  by  the  perils  of  the  sea  ;  miless  the  danger  were 
such,  as  would  equally  have  occasioned  the  loss,  if  the 
goods  had  been  safely  stowed  under  deck.3  In  a  case  in 
North  Carolina,  it  was  expressly  held,  that,  although  taking  a 
full  price  and  stowing  upon  .deck,  will  subject  the  owner  of 
the  vessel  to  pay  damage,  if  what  is  so  placed  be  thereby 
lost  or  injured,  yet  if  that  did  not  occasion  the  loss  or  injury, 
he  will  be  no  more  liable  for  damage  to  that  part  of  the 
cargo,  than  for  damage  to  the  rest  of  it.4  If  a  common 
carrier  receives  goods  directed  to  be  carried  in  a  particular 
manner,  (as  for  instance,  "  Glass  with  care,  this  side  up,") 
he  is  undoubtedly  required  to  carry  them  in  that  manner 
and  position ;  and  if  negligence  and  disregard  of  the  direc- 
tions are  clearly  proved,  the  carrier  is  only  obliged  to  prove 
that  the  loss  happening,  was  occasioned  by  some  cause  not 


1  Story  on  Bailm.  $  413  d. 

2  Ibid.     See  ante,  §  58. 

3  Crane  v.  The  Rebecca,  cited  6  Am.  Jurist,  1,  15,  and  Story  on  Bailm. 
413  d. 

4  Gardner  v.  Smallwood,  2  Hayw.  (N.  C.)  R.  349. 

18 


206  LAW   OP   CARKIERS.  [CH.  VI. 

attributable  to  this  disregard  of  the  direction.1  Where 
goods  were  injured  on  board  a  canal  boat,  by  the  boat's 
striking  against  a  stone  at  the  bottom  of  the  canal,  by  which 
a  hole  was  knocked  in  her  bottom  ;  in  an  action  for  the 
injury,  the  Court  said,  "  the  goods  in  question  might  have 
become  wet  in  various  ways,  and  thus  have  received  the 
injury  complained  of  without  the  boat,  in  which  they  were 
on  the  canal,  being  in  the  least  deficient,  but  on  the  con- 
trary, perfectly  tight,  staunch,  and  strong ;  and  if  so,  it 
might  be  doing  great  injustice  to  infer  a  breach  of  the  pro- 
mise from  that  circumstance."  2  If  a  ship  be  not  seaworthy 
and  is  lost,  although  the  loss  is  occasioned  by  a  peril  of  the 
sea  wholly  unconnected  with  unseaworthiness,  the  carrier 

1  Hastings  v.  Pepper,  11  Pick.  (Mass.)  R.  41.     See  Camoys  v.  Scurr, 
9C.  &  Payne,  R.  383. 

2  Humphreys  v.  Reed,  6  Whart.  (Penn.)  R.  435  ;  and  see  Clark  & 
Co.  v.  Spence,  10  Ibid.  336.      As  to  the  insufficiency  of  vessel  :  Per 
Lord  Denman,  C.  J,,  in  Hollingworth  v.  Brodrick  :  "  The  defence  of  un- 
seaworthiness is  in  general  applied  to  the  time  when  the  risk  commenced  ; 
that  is  not  done  here,  nor  is  the  loss  stated  to  have  happened  in  conse- 
quence of  the  unseaworthiness  supervening.    I  own  I  feel  a  doubt,  whether 
if  it  were  distinctly  averred,  that  the  ship  had  by  gross  negligence  been 
brought,  during  the  voyage,  to  a  condition  in  which  she  would  not  be 
insurable,  that  might  not  be  a  defence.      But  I  think,  that,  if  it  were 
clearly  made  out,  the  assured  could  not  say,  that  the  loss  was  by  perils 
insured  against."     By  Patteson,  J. :  —  "  The  defence  is  put  entirely  upon 
the  fact,  that  the  ship,  during  the  voyage,  was  unseaworthy.     It  is  not 
stated,  that  she  became  so  through  neglect  to  repair  from  time  to  time,  and 
that  that  occasioned  the  loss.     1  do  not  know  that  that  would  have  been  a 
defence.     But  it  is  only  said,  that  by  some  means  the  ship  was  greatly 
damaged.     It  is  clear,  that  the  implied  warranty  of  seaworthiness  is  satis- 
fied, if  the  ship  is  seaworthy  at  the  commencement  of  the  risk."     Holling- 
worth v.  Brodrick,  7  Adol.  &  Ell.  R.  40.     In  an  action,  in  Maryland,  by 
the  shipper  of  goods  against  the  master  of  a  vessel,  who  was  also  con- 
signee of  the  cargo,  in  which  it  appeared,  that  the  vessel  was  bound  to 
Barbadoes,  but  was  obliged  to  put  into  Bermuda,  where  she  was  con- 
demned and  the  cargo  sold,  it  was  held,  that  the  plaintiff  might  show,  that 
the  vessel  was  unseaworthy  at  the  commencement  of  the  voyage,  and 
recover  an  amount  retained  by  the  defendant  for  freight.     Dickinson  v. 
Haslett,  3  H.  &  J.  (Md.)  R.  345. 


CH.  VI.]        RESPONSIBILITY    OP   COMMON   CARRIERS.  207 

will  not  be  liable  for  the  loss,  although  he  would  be  liable, 
if  that  defect  was  the  cause  of  the  loss.1 

§  206.  In  the  case  of  Davis  v.  Garrett,2  there  is  a  very 
pointed  intimation,  that  if  the  loss  must  have  happened  to 
goods  on  board  a  vessel,  without  the  misconduct  by  which  it 
was  occasioned,  the  owner  of  the  vessel  would  not  be  liable 
for  it.  The  facts  in  this  case,  were,  that  the  master  of  a  barge 
deviated  from  the  usual  course,  and  during  the  deviation,  a 
tempest  wetted  the  lime  which  was  on  board,  and  thus  setting 
fire  to  the  barge,  whereby  the  whole  was  lost.  The  objection 
taken  by  the  counsel  to  a  recovery  by  the  plaintiff  for  the 
amount  of  the  loss,  was,  that  there  was  no  natural  or  neces- 
sary connection  between  the  wrong  of  the  master  in  taking 
the  barge  out  of  its  proper  course,  and  the  loss  itself;  for  that 
the  same  loss  might  have  happened  by  the  very  same  tem- 
pest, if  the  barge  had  proceeded  in  her  direct  course.  Tindal, 
C.  J.,  in  giving  the  opinion  of  the  Court,  answered  this  ar- 
gument by  saying  :  "  If  this  argument  were  to  prevail,  the 
deviation  of  the  master,  which  is  undoubtedly  a  ground  of 
action  against  the  owner,  would  never,  or  only  under  very 
peculiar  circumstances,  entitle  the  plaintiff  to  recover.  For, 
if  a  ship  is  captured  in  the  course  of  deviation,  no  one  can 
be  certain  that  she  might  not  have  been  captured  if  in  her 
proper  course.  And  yet,  in  Parker  v.  James,3  where  the 
ship  was  captured,  whilst  in  the  act  of  deviation,  no  such 
ground  of  defence  was  even  suggested.  Or,  again,  if  the 
ship  strikes  against  a  rock,  or  perishes  by  storm  in  the  one 
course,  no  one  can  predict,  that  she  might  not  equally  have 
struck  upon  another  rock,  or  met  with  the  same  or  another 
storm,  if  pursuing  her  right  or  ordinary  voyage.  The  same 
answer  might  be  attempted  to  an  action  against  a  defendant 
who  had,  by  mistake,  forwarded  a  parcel  by  the  wrong  con- 


1  Story  on  Bailm.  §  413  d,  referring  to  the  Paragon,  Ware  R.  322. 

2  Davis  v.  Garrett,  6  Bing  R.  716. 

3  Parker  u.  James,  4  Campb.  R.  112. 


208  LAW   OF   CARRIERS.  [CH.  VI. 

veyance,  and  a  loss  had  thereby  ensued  ;  and  yet  the  defend- 
ant in  that  case  would  undoubtedly  be  liable."  But,  the  real 
answer  to  the  objection  taken  by  the  counsel,  the  learned 
Judge  proceeded  to  say,  was,  "  that  no  wrongdoer  can  be 
allowed  to  apportion  or  qualify  his  own  wrong  ;  and  that  as 
a  loss  has  actually  happened  whilst  his  wrongful  act  was  in 
operation  and  force,  and  which  is  attributable  to  his  wrongful 
act,  he  cannot  set  up,  as  an  answer  to  the  action,  the  bare 
possibility  of  a  loss,  if  his  wrongful  act  had  never  been 
done.  It  might  admit  of  a  different  construction,  if  he  could 
show,  not  only  that  the  same  loss  might  have  happened, 
but  that  it  must  have  happened,  if  the  act  complained  of  had 
not  been  done." 

§  207.  In  Bell  v.  Reed,  in  Pennsylvania,1  Mr.  J.  Bracken- 
ridge  seems  to  have  held  at  the  trial,  that  the  carrier  was 
liable  for  a  loss  by  unseaworthiness,  not  occasioned  by  the 
unseaworthiness.  But  as  the  jury  found  a  verdict  for  the 
carrier,  that  point  was  not  material,  upon  the  motion  for  a 
new  trial.  Mr.  C.  J.  Tilghman,  in  delivering  the  opinion 
against  a  new  trial,  said :  "  The  man  who  undertakes  to 
transport  by  water  for  hire,  is  bound  to  provide  a  vessel 
sufficient  in  all  respects  for  the  voyage,  well  manned,  and 
furnished  with  sails  and  all  necessary  furniture.  If  a  loss 
happens  through  defects  in  any  of  these  respects,  the  carrier 
must  make  it  good."  It  is  true  the  learned  Judge  added, 
"  The  law  was  laid  down  fairly,  and  the  fact  left  to  the 
jury."  But  as  no  complaint  was,  or  could,  be  made  by  the 
only  party  (the  defendant,)  who  had  a  right  to  complain  of 
the  ruling  at  the  trial  against  him,  he  having  a  verdict  in 
his  favor,  it  may  be  doubted,  if  the  Court  meant  at  all  to 
affirm  the  doctrine  beyond  the  point  by  the  Chief  Justice.2 
The  important  case  of  Hart  v.  Allen,  however,  in  the  Su- 


1  Bell  v.  Reed,  4  Binn.  (Penn.)  R.  127. 

2  Comment  by  Story  on  Bailm.  note  2,  to  p.  526,  4th  edit. 


CH.  VI.]         RESPONSIBILITY   OF   COMMON   CARRIERS.  209 

preme  Court  of  Pennsylvania,1  settles  the  doctrine  in  that 
State.  In  this  case,  it  was  held,  in  an  action  against  a  com- 
mon carrier  for  a  loss,  that  it  is  not  sufficient  to  entitle  the 
plaintiff  to  recover,  that  there  was  a  defect  about  the  vessel, 
or  want  of  skill  in  the  carrier  ;  but  it  must  also  be  shown, 
that  such  defect  or  want  of  skill  contributed,  or  may  have 
contributed,  in  some  measure,  to  occasion  the  loss  ;  that  it 
is  the  consequence  of  negligence,  not  the  abstract  existence  of 
it,  for  which  a  carrier  is  answerable.2 


1  Hart  v  Allen  et  al,  2  Watts,  (Penn.)  R.  114. 

2  In  this  case,  the  above-mentioned  case  of  Bell  v.  Reed  is  thus  com- 
mented on  by  Gibson,  Ch.  J.,  who  delivered  the  opinibn  of  the  Court : 
"  Standing  thus  on  the  principles  of  the  contract,  it  remains  to  be  seen 
how  the  questions  stand  on  authority.     The  only  thing  in  the  books  like 
a  judicial  decision  of  the  point  against  the  carrier,  is  the  already  quoted 
nisi  prius  opinion  of  Mr.  Justice  Brackenridge,  which  is  supposed  to  have 
been  affirmed  by  this  Court  in  bank,  and  which,  therefore,  merits  a  par- 
ticular examination.     It  had  relation  to  a  case  of  stranding  by  storm,  in 
which  the  point  of  defence  was,  that  the  loss  had  been  occasioned  by  the 
act  of  God  ;  to  rebut  which,  evidence  was  given  of  want  of  seaworthiness 
by  reason  of  certain  defects  in  the  cable  and  hull.     The  matter  was  put 
to  the  jury  as  a  question  of  fact,  and  found  for  the  carrier,  and  the  owner 
of  the  goods  appealed  from  an  adverse  determination  of  his  motion  for  a 
new  trial.     The  Judge  certainly  did  charge  that  it  lies  at  the  bottom  of 
the  contract,  as  a  condition  on  which  the  custody  of  the  goods  is  charged, 
that  the  vehicle  be  a  good  one  ;  and  that  if  it  be  not,  the  carrier  cannot, 
to  excuse  himself  from  a  subsequent  loss,  allege  that  it  was  inevitable. 
That  he  cannot  urge  the  act  of  God  as  an  excuse,  when  he  himself  had 
not  used  the  human  means  and  precautions  which  he  had  undertaken  and 
was  bound  to  use  ;  and  that  even  a  stroke  of  lightning,  or  a  squall  in  the 
harbor's  mouth,  ought  not  to  be  alleged  by  one  who  has  fraudulently 
taken  goods  into  an  unfit  vessel.     That  he  called  it  fraud  to  do  so  ;  and 
that  it  is  the  faithful  carrier  only  who  can  be  excused  on  the  ground  of  an 
act  of  Providence.     That  in  the  case  of  an  accident  from  winds  or  waves, 
it  is  impossible  to  say,  but  the  unworthiness  of  the  vessel  may  have  con- 
tributed to  render  the  loss  inevitable  ;  and  that  unworthiness  being  estab- 
lished, the  legal  presumption  is,  that  it  was  the  cause  of  the  accident. 
This  is  the  substance  of  the  charge  ;  and  it  is  evident  from  it,  that  in 
fixing  the  carrier  with  consequences  to  which  his  negligence  may  have  in 
nowise  contributed,  the  Judge  considered  the  law  as  dealing  with  him  for 

18* 


210  LAW   OF   CARRIERS.  [CH.  VI. 

§  208.  The  subsequent  case  of  Reed  v.  Dick,  in  Pennsyl- 
vania,1 is  likewise  an  important  case  on  the  subject.     It  was 


a  fraud.  In  the  remarks  subjoined  to  his  report  of  the  trial,  he  avows 
that  his  opinion  is  not  founded  on  the  authority  of  adjudged  cases,  but  on 
analogies  drawn  from  the  contract  of  insurance,  though  it  be  notorious 
that  a  breach  of  the  warranty  of  seaworthiness  is  not  visited  on  the 
assured  as  a  penalty,  but  operates  to  avoid  the  policy  by  the  failure  to 
perform  it  as  a  precedent  condition.  Our  present  business,  however,  is 
not  with  the  reasons  of  the  Judge,  but  to  ascertain  exactly  how  far  his 
position  was  established  by  the  Judges  in  Bank.  In  delivering  the  opinion 
of  the  Court,  the  Chief  Justice  remarked,  that  there  was  no  complaint  of 
error  of  law  ;  and  that  the  law  had  been  laid  down  fairly,  the  fact  of  sea- 
worthiness having  been  left  to  the  jury.  The  generality  of  this  remark  is 
to  be  qualified  by  the  subject-matter  of  which  it  was  predicated.  Un- 
doubtedly there  was  no  room  for  complaint  in  respect  of  the  law,  nor 
could  there  be,  by  the  owner  of  the  goods,  who,  as  the  appellant  from  a 
verdict  against  him,  was  alone  competent  to  complain  ;  for  the  law  was 
certainly  laid  down  fairly,  to  say  the  least,  as  to  him.  Besides,  all  the 
remarks  of  the  Judge  which  were  strictly  relevant  to  the  case  before  him, 
in  which  the  species  of  the  alleged  unworthiness,  especially  the  defective- 
ness  of  the  cable,  would  have  had  an  immediate  and  powerful  effect  in 
leading  to  the  catastrophe,  seem  to  have  been  warranted  by  the  evidence. 
Now  it  was  these  remarks  with  which,  on  the  motion  for  anew  trial,  the 
Court  in  bank  had  to  do ;  and  it  would  have  been  a  departure  from  the 
known  habit  of  the  Chief  Justice,  and  perhaps  even  from  the  dictates  of 
propriety,  to  have  made  the  real  or  supposed  errors  of  the  Judge,  in  an 
abstract  principle,  the  subject  of  critical  remark.  But  that  the  Chief 
Justice  admitted  the  solidity  of  the  abstract  principle,  is  made  more  than 
doubtful  by  his  own  compendious  statement  of  the  principle  which  he 
deemed  applicable  to  the  case.  '  The  man,'  said  he,  '  who  undertakes  to 
transport  goods  by  water  for  hire  is  bound  to  provide  a  vessel  sufficient 
in  all  respects  for  the  voyage,  well  manned  and  furnished  with  sails, 
anchors,  and  all  necessary  furniture.  If  a  loss  happens  through  defect  in 
any  of  these  respects,  the  carrier  must  make  it  good.'  What  he  would 
have  said  of  a  loss  admitted  to  have  happened  not  through  defect  in  any 
of  these  respects,  it  is  easy  to  conjecture  from  the  guardedness  of  his 
expression  ;  and  I  therefore  take  the  adjudication  of  the  Court  in  bank  to 
be  an  authority  against  the  principle  to  which  it  has  been  cited  ;  so  that 
the  judgment  below,  in  the  case  before  us,  rests  on  the  opinion  of  Mr. 
Justice  Brackenridge  alone,  not  only  unsupported,  but  contradicted  in  an 

i  Reed  v.  Dick,  8  Watts  (Penn.)  R.  480. 


CH.  VI.]        RESPONSIBILITY   OF   COMMON   CARRIERS.  211 

held,  in  this  case,  that  an  opinion  expressed  by  the  crew  of 
a  vessel,  in  consultation  with  the  master,  on  the  soundness 


important  particular  by  the  other  Judges.  If,  as  I  have  said,  want  of 
seaworthiness  were  a  fraud,  it  would  vitiate  the  contract  entirely  ;  yet 
such  a  notion  as  the  avoidance  of  the  contract  for  this  cause,  has,  I  be- 
lieve, never  been  entertained.  That  the  law  would  presume  that  the  loss 
arose  from  unworthiness,  admitted  or  established,  is  a  more  reasonable 
position  ;  but  would  the  presumption,  as  the  Judge  seemed  to  think,  be 
conclusive  ?  I  am  at  a  loss  to  conjecture  why  it  should.  The  notion 
seems  to  rest  on  the  same  foundation  as  the  avoidance  of  the  contract  for 
fraud,  and  is  evidently  untenable  in  a  case  where  the  reverse  of  the  pre- 
sumption is  admitted,  or  what  is  the  same  thing,  is  a  postulate  of  the 
argument.  The  only  other  authority  which  seems  to  bear  at  all  on  the 
point,  is  the  case  of  Amies  v.  Stevens,  1  Stra.  128,  cited  by  Justice 
Brackenridge,  but  more  consonant,  it  seems  to  me,  to  the  opinion  of  Chief 
Justice  Tilghman.  The  hoy  of  a  carrier  with  goods  on  board  was  sunk, 
coming  through  a  bridge,  by  a  sudden  gust  of  wind.  The  owner  of  the 
goods,  insisting  that  the  carrier  was  chargeable  with  negligence  in  going 
through  at  such  a  time,  offered  evidence  to  show,  that  if  the  hoy  had 
been  in  good  order,  it  would  not  have  sunk  with  the  stroke  it  received  ; 
and  thence  inferred  the  carrier  liable  for  all  accidents  that  might  have 
been  prevented  by  putting  the  goods  into  another  hoy.  But  Chief  Jus- 
tice Pratt  held  the  carrier  not  liable,  the  damage  having  been  occasioned 
by  the  act  of  God.  For  though  the  carrier  ought  not  to  have  ventured 
to  shoot  the  bridge  if  the  bent  of  the  weather  had  been  tempestuous ;  yet 
this  being  only  a  sudden  gust  of  wind,  had  entirely  differed  the  case. 
And  no  carrier,  he  said,  is  obliged  to  have  a  new  carriage  for  every  jour- 
ney, it  being  sufficient  if  he  provides  one  which,  without  any  extraordinary 
accident,  such  as  this  was,  will  probably  perform  the  journey.  From  this, 
it  seems  to  have  been  the  opinion  of  the  Chief  Justice,  that  to  render  a 
carrier  liable  for  an  act  of  Providence,  it  is  necessary  that  his  own  care- 
lessness should  have  cooperated  with  it  to  precipitate  the  event.  But  the 
case  is  of  greater  value  in  ascertaining  the  requisite  degree  of  ability  and 
skill  in  the  captain  and  crew  ;  which,  according  to  the  principal  just  stated, 
is  not  to  be  measured  by  the  exigences  of  a  crisis,  but  by  its  sufficiency  to 
conduct  the  vessel  safely  to  the  place  of  destination  in  the  absence  of  ex- 
traordinary accident.  Nor  is  the  carrier  bound  to  provide  a  captain  who 
has  already  made  a  voyage  as  such,  if  he  has  acquired  a  competent  share 
of  skill  in  any  other  station.  The  first  question,  therefore,  will  be, 
whether  the  captain  and  crew  of  the  boat  had  the  degree  of  ability  and 
skill  thus  indicated  ;  and  if  it  be  found  that  they  had  not,  then  the  second 


LAW   OF   CARRIERS.  [CH.  VI. 

of  a  link  in  a  chain  cable,  which  they  were  paying  out  to 
prevent  the  vessel  from  dragging  her  anchors,  is  admissible 
in  proof  of  its  adequacy  to  the  ordinary  exigencies  of  the 
navigation  ;  that  evidence  that  other  vessels  driven  into  port 
by  the  same  storm,  were  staunch  and  strong  as  any  em- 
ployed in  the  trade,  is  competent  to  show  its  violence  ;  and 
that  the  sails  were  sufficient,  is  inoperative  where  the  loss 
is  assumed  to  have  been  occasioned  exclusively  by  the  insuf- 
ficiency of  the  cable.  In  this  case,  the  opinion  of  the  Court 
was  delivered  by  Gibson,  C.  J.,  as  follows :  "  Whether  we 
look  to  the  carrier's  Common  Law  responsibility,  or  to  the 
limit  assigned  to  it  by  the  exception  in  the  bill  of  lading,  we 
must  hold  him  bound,  at  the  peril  of  consequences  actually 
produced  by  any  defect  in  that  particular,  to  provide  a  vessel 
sufficiently  furnished  with  tackle  and  apparel  to  encounter 
the  ordinary  dangers  of  the  voyage  ;  not  its  extraordinary 
and  unforeseen  dangers,  against  which  it  behooves  the  mer- 
chant to  secure  himself  by  a  policy  of  insurance.  It  might 
be  supposed,  therefore,  that  seaworthiness  could  not  enter 
into  the  question  of  a  carrier's  liability  for  a  loss  from  an 
act  of  God  ;  or,  to  speak  more  reverently,  inevitable  acci- 
dent, with  which  it  might  seem  to  have  no  connection.  But 
the  term  is  used  comparatively,  and  as  indicating  a  result, 
not  exclusively  of  irresistible  force,  but  of  force  above  what 
is  ordinarily  experienced  ;  and  deficiency  of  equipment  for 
ordinary  exigencies,  may  consequently  be  the  effective  cause 
of  loss  from  an  extraordinary  peril,  which  would  not  other- 
wise have  been  disastrous.  Who  can  set  bounds  to  the  suc- 
cess of  human  exertion  by  ordinary  means,  without  which 
the  end  would  be  unattainable  ?  By  the  energy  of  the  crew, 
many  a  ship,  whose  fate  would  have  been  sealed  by  the 


question  will  be,  whether  the  want  of  it  contributed  in  any  degree  to  the 
actual  disaster ;  but  if  either  of  these  be  found  for  the  carrier,  it  will  be  a 
decision  of  the  cause.  It  seems,  therefore,  that,  though  the  exceptions  to 
the  admission  of  the  deposition  are  unfounded,  the  cause  ought  to  be  put, 
on  these  principles,  to  another  jury." 


OH.  VI.]         RESPONSIBILITY   OF   COMMON   CARRIERS.  213 

breaking  of  a  brace  or  the  snapping  of  a  spar,  has  been 
rescued  from  a  lee  shore.  The  longer  a  sinking  ship  can 
be  kept  lying  afloat,  the  greater  her  chance  of  succor ;  and 
of  the  benefit  of  a  chance,  the  merchant  or  insurer  is  not  to 
be  deprived ;  but  he  would  be  deprived  of  it  by  a  defect  in 
the  pumps,  or  by  any  thing  else  that  would  hasten  the 
catastrophe.  There  may,  however,  be  disasters  so  sudden 
and  so  overwhelming,  as  to  bid  defiance  to  precaution  ;  and 
in  respect  to  these,  want  of  preventive  apparatus  for  acci- 
dents of  another  kind,  would  not  preclude  the  carrier  from 
insisting  on  exemption  from  a  loss  occasioned  by  one  of  them 
as  an  act  of  Providence  :  as  we  ruled  in  Hart  v.  Allen  & 
Grant,  2  Watts,  R.  114,  where  the  damage  was  induced  by 
capsizing  in  a  squall.  Now  as  the  proximate  cause  of  the 
loss,  in  the  case  at  bar,  was  the  parting  of  a  cable,  its  actual 
sufficiency  for  ordinary  purposes  without  regard  to  the  mas- 
ter's knowledge  of  its  condition,  was  the  point  on  which  the 
cause  turned ;  and  the  objection  to  the  opinion  of  the  crew 
in  consultation  with  him,  was  not  for  its  supposed  incompe- 
tence in  the  abstract,  but  for  the  want  of  an  attestation  of  it 
by  the  oaths  of  those  who  had  expressed  it.  I  remember 
not  what,  or  whether  any,  has  been  given  for  the  admissi- 
bility  of  such  evidence  in  cases  of  jettison ;  but  it  seems  to 
be  admissible,  on  general  principles,  as  part  of  the  res 
gesta.  Seamen  are  expert  in  nautical  affairs,  and  their 
judgment,  in  matters  of  opinion,  touching  the  working  and 
preservation  of  a  ship,  may  be  as  satisfactorily  attested  by 
their  acts  when  impelled  by  motives  of  duty  and  self-preser- 
vation, as  if  it  were  given  under  the  sanction  of  an  oath. 
It  was  remarked  by  Mr.  Justice  Story,  in  Tidmarsh  v.  The 
Washington  Insurance  Company,  1  Mason,  R.  439,  that  the 
standard  of  seaworthiness  is  arbitrary  and  dependent  on  the 
opinions  of  nautical  men  ;  and  certainly  their  opinions  can- 
not be  better  manifested  by  their  oaths  than  they  are  by 
their  acts,  which  go  to  make  up  the  usages  of  the  port. 
Besides,  when  the  rejected  evidence  was  proposed,  no  other 
proof  had  been  given  of  the  supposed  flaw  in  the  cable,  than 


214  LAW  OF  CARRIERS.  [CH.  VI. 

that  a  mark  had  been  put  upon  a  link  in  it  by  a  hand  who 
had  left  the  vessel;  and  surely  to  the  judgment  of  that 
hand,  thus  indicated,  might  be  opposed  the  declared  judg- 
ment of  the  crew.  The  evidence  of  the  condition  and  quali- 
ties of  other  vessels  which  were  unable  to  keep  the  lake, 
was  competent  to  show  the  violence  of  the  storm ;  but 
inoperative,  as  the  turning  ppint  of  the  cause  was  the  suffi- 
ciency of  the  Farmer's  anchors  and  cables.  Evidence  of 
the  condition  of  her  sails,  also,  was  competent  in  the  first 
instance,  but  inoperative.  As  already  observed,  the  carrier 
was  bound  to  provide  a  vessel  adequate  to  the  navigation  ; 
but  according  to  Hart  v.  Allen  &  Grant,  the  question  of  ade- 
quacy arises  only  where  inadequacy  could  have  contributed 
to  the  event.  Now  it  appears,  without  contradiction,  that 
when  the  chain  cable  parted,  the  other  one  was  slipped,  and 
that  the  vessel  was  beached  by  means  of  her  sails  at  the 
most  eligible  place  in  the  harbor.  It  is  clear,  therefore,  that 
the  sails  did  their  office  to  the  extent  of  the  service  required 
of  them." 

§  209.  In  respect  to  the  thing-  bailed,  it  has  been  shown, 
that  supposing  the  carrier  to  be  accustomed  to  carry  money 
for  all  persons  indifferently,  as  well  as  goods,  or  that  it  is 
the  usage  of  the  trade  or  business  to  take  both,  the  responsi- 
bility peculiar  to  a  common  carrier  extends  to  both.1  So  it 
has  also  been  shown,  that  the  responsibility  covers  the 
baggage  of  passengers,  in  stage-coaches,  railroad-cars  and 
steamboats ;  2  but  that  letters  delivered  at  the  post-office,3 
and  slaves  delivered  to  be  transported  from  one  place  to 
another,4  are  things  and  persons,  the  undertaking  to  carry 
which,  does  not  impose  a  common  carriers's  responsibility. 

§  210.  The  rule  of  responsibility  of  course  does  not  cover 
losses  arising  from  the  ordinary  deterioration  of  goods,  in 

1  Ante,  $  100,  et  seq.  3  Ante,  §  117,  et  seq. 

2  Ante,  $  107,  et  seq.  4  Ante,  §  122. 


CH.  VI.]         RESPONSIBILITY   OF  COMMON    CARRIERS.  215 

quantity  or  quality,  in  the  course  of  transportation,  or  from 
their  inherent  infirmity  and  tendency  to  decay,  or  which 
arise  from  the  neglect  or  misconduct  of  the  owner  or  shipper 
of  the  goods.  The  carrier,  for  instance,  is  not  liable  for 
any  damage  from  the  ordinary  decay  of  oranges,  or  other 
fruits  in  the  course  of  their  voyage.1  But  the  master  of  a 
vessel  is,  nevertheless,  bound  to  take  all  reasonable  care  of 
such  boiia  peritura,  and  if  they  require  to  be  aired  or  venti- 
lated, he  must  take  the  usual  and  proper  methods  for  this 
purpose.2 

§  211.  So  the  carrier  is  not  responsible  for  the  ordinary 
diminution  or  evaporation  of  liquids,  or  the  ordinary  leakage 
of  the  casks,  in  which  the  liquors  are  put,  in  the  course  of 
transportation,  or  from  their  acidity  or  tendency  to  effervesce  ; 
as  his  implied  obligation  does  not  extend  to  such  cases,3  un- 
less to  prevent  loss  from  such  causes  is  within  his  control. 
An  action  was  brought  against  the  owners  of  a  steamboat 
on  account  of  loss  on  a  cargo  consisting  of  over  two  hundred 
barrels  of  molasses,  which  the  bill  of  lading  stated  to  have 
been  received  in  good  order  and  well  conditioned,  and  to  be 
delivered  at  Pittsburg.  The  cargo  was  brought  to  Louisville, 
and  the  state^of  the  water  in  the  river  not  permitting  the 
boat  to  proceed  to  Pittsburg,  the  molasses  was  put  into  a 
warehouse,  and  afterwards  (with  a  little  delay)  re-shipped, 
and  arrived,  in  the  usual  time,  at  Pittsburg.  On  delivery 
there,  it  was  discovered,  that  two  of  the  barrels  were  miss- 
ing, seven  of  them  empty  or  nearly  so,  and  some  others  only 
half  full.  Information  was  elicited  from  many  witnesses  as 


1  3  Kent,  Comm.  299,  300,  301 ;  Story  on  Bailm.  §  492  a,  4th  edit. 

2  Abbott  on  Shipp.  p.  371  ;  see  Davidson  v.  Gwynne,  12  East,  R.  381. 

3  3  Kent,  Comm.  ub.  sup. ;  Story  on  Bailm.  ub.  sup.     If  a  pipe  of  wine, 
upon  the  ferment,  burst  in  the  wagon,  when  gently  driven,  the  carrier  is 
not  liable  ;  for  the  fault  is  in  the  wine,  and  the  insurer  does  not  insure 
against  the  defects  of  the  thing  itself.     Farrar  v.  Adams,  Bull.  N.  P.  69, 
cited  1  Dane,  Abr.  479. 


216  LAW   OF    CARRIERS.  [CH.  VI. 

to  the  trade  on  the  western  waters,  and  on  the  nature  of  the 
article  of  molasses,  and  the  trade  in  it ;  for  instance,  that,  in 
warm  weather,  from  fermentation,  a  barrel  will  be  full,  and 
even  running  out  at  the  bung  hole,  on  its  being  moved  and 
carried  to  a  dray,  and  though  when  still,  and  in  a  cool 
place,  the  cask  will  not  be  full  by  one  fourth  or  one  third  ; 
that,  on  account  of  the  fermentation  and  expansion  of  the 
molasses,  it  was  necessary  to  have  small  vent  holes  on  the 
top  of  the  cask,  to  prevent  its  bursting ;  and  that  through 
these  vent  holes,  from  three  to  five  gallons  will  be  lost  be- 
tween New  Orleans  and  Pittsburg,  if  the  voyage  is  in  warm 
weather,  as  was  the  voyage  in  question.  It  appeared  also, 
that  the  article  in  warm  weather  loses  more  or  less  by 
leakage,  according  to  the  goodness  of  the  casks.  It  was 
conceded,  that  the  lost  barrels  must  be  paid  for ;  but  the 
question  was,  whether  the  deficiency  in  the  others  was  the 
consequence  of  defect  in  the  casks,  or  of  bad  stowage,  or 
other  causes  for  which  carriers  were  answerable.  The  fol- 
lowing charge  to  the  jury  in  the  Court  below  was  held  to 
be  correct :  "  No  care  or  attention  of  the  carrier  could  pre- 
vent the  fermentation  and  expansion  of  the  molasses  in  warm 
weather,  by  which  a  considerable  quantity  of  molasses  would 
be  lost ;  this  loss,  therefore,  arising  from  a  law  of  nature, 
was  necessary,  and  came  within  the  exception  of  the  act  of 
God.  The  defendants  ought  not  to  be  answerable  for  loss 
occasioned  by  the  peculiar  nature  of  the  article,  carried  at 
that  season  of  the  year,  nor  leakage  arising  from  secret 
defects  of  the  casks,  which  could  not  have  been  observed  or 
remedied  after  the  casks  were  stowed  away  ;  but  for  all 
other  losses,  not  thus  occasioned,  or  shown  by  the  defendant 
to  have  originated  from  causes  beyond  their  control,  they 
are  answerable."  And  the  Court  held,  that  unless  the  de- 
fendant could  prove,  that  a  fraud  and  imposition  was  prac- 
tised upon  him,  he  could  not  contradict  the  bill  of  lading 
signed  by  him ;  and  that  if  the  barrels  of  molasses  were 
injured  in  their  delivery  to  the  carrier,  and  he  saw  and 
knew  it,  this  would  not  be  such  a  latent  defect  as  would 


CH.  VI.]         RESPONSIBILITY  OF  COMMON   CARRIERS.  217 

excuse  him  from  liability  for  loss,  beyond  that  which  was 
occasioned  by  the  peculiar  nature  of  the  article  carried.1 

§  212.  With  regard  to  the  manner  of  putting  ttp,  and 
packing  of  the  goods,  if  it  is  not  done  in  a  proper  manner 
by  the  owner  or  shipper,  the  carrier  is  not  responsible  for  loss 
in  consequence  thereof.2  For  careful  stowage  of  the  goods 
on  board  the  vessel,  the  carrier  is  responsible.  The  vessel 
must  be  furnished  with  proper  dunnage  (pieces  of  wood 
placed  against  the  sides  and  bottom  of  the  hold)  to  preserve 

1  Warden  v.  Greer,  6  Watts,  (Penn.)  R.  424  ;  And  See  Leech  v.  Bald- 
win, 5  Ibid.  446. 

2  3  Kent,  Comm.  ub.  sup. ;  Story  on  Bailm.  ub.  sup.     Upon  this  sub- 
ject we  copy  the  following  from  Walford's  Summary  of  the  Law  of  Rail- 
ways, London  and  Boston,  1850:  —  "The  ground  of  defence,  that  the 
injury  was  owing  to  some  internal  defect,  or  to  the  improper  mode  of  pack- 
ing, &c.  of  the  articles  themselves,  is  one  that  in  various  instances  has 
been  set  up  by  railway  companies.     In  Norman  v.  London  and  Brighton 
Railway  Co.,  which  was  an  action  for  an  injury  to  some  chairs  sent  by  the 
defendants'  railway ;  the  company  attempted  to  show  that  the  chairs  were 
of  inferior  materials,  and  badly  packed,  though  ultimately  the  plaintiff  had 
a  verdict.    Home  Circuit,  May,  1843.    Again,  in  Lucus  v.  Birmingham  and 
Gloucester  Railway  Co.,  which  was  an  action  against  the  company  as  car- 
riers for  a  loss  by  leakage  from  a  flask  of  essential  oil  of  lemons,  the  defence 
was  that  the  loss  arose  from  the  improper  packing  of  the  case  containing  the 
flask,  and  not  from  any  negligence  on  the  part  of  the  company.   The  plaintiff, 
however,  obtained  a  verdict.    Oxford  Spring  Assizes,  1842.    So  in  Rutley 
v.  Southeastern  Railway  Co.,  (Spring  Assizes,  1845,  Maidstone.)     This 
was  an  action  for  the  loss  of  some  linen  goods  sent  by  the  defendants' 
railway,  owing,  as  it  appeared,  to  sparks  from  the  engine  getting  inside 
the  truck,  and  setting  the  bale  containing  the  linen  on  fire.     The  defence 
was  that  the  goods  were  not  properly  packed,  the  tarpaulin  which  covered 
the  truck,  having  been  full  of  holes.     The  plaintiff,  however,  had  a  ver- 
dict.    And  where  a  carrier  received  several  packages,  one  of  watches, 
another  of  flutes,  &c.,  and  put  them  all  up  in  one  bag,  and  so  sent  them 
by  railway,  and  the  flutes  were  injured,  it  was  left  to  the  jury  to  say 
whether  the  accident  was  attributable  to  the  carelessness  of  the  company, 
or  whether  the  plaintiff  by  his  own  improper  proceeding,  contributed  to  the 
disaster ;  the  mode  of  packing  adopted  by  him  having  thrown  upon  the 
company  a  more  onerous  task  than  if  they  had  received  the  articles  sepa- 
rately.    Smith  v.  Birmingham  Railway  Co.,  Midland  Circuit,  1845." 

19 


218  LAW    OF    CARRIERS.  [CH.  VT. 

the  cargo  from  the  effects  of  leakage,  according  to  its  nature 
and  quality.  And  care  must  be  taken  by  the  master  (unless 
by  usage  or  agreement  this  business  is  to  be  performed  by 
persons  hired  by  the  merchant,)1  so  to  stow  and  arrange 
the  different  articles,  of  which  the  cargo  consists,  that  they 
may  not  be  injured  by  each  other,  or  by  the  motion  or  leak- 
age of  the  ship.2  It  is  evident,  therefore,  that  the  decision 
of  a  controversy  in  respect  to  this  particular  subject,  very 
much  depends  upon  the  facts  which  distinguish  it.  In  an 
action  against  the  proprietors  of  a  steam  vessel  to  recover 
compensation  for  damage  to  goods  sent  by  them  as  carriers, 
if,  on  the  whole,  it  be  left  in  doubt  what  the  cause  of  the 
injury  was,  or  if  it  may  as  well  be  attributable  to  "  perils 
of  the  sea  "  as  to  negligence,  the  plaintiff  cannot  recover ; 
but  if  the  perils  of  the  seas  required,  that  more  care  should 
be  used  in  the  stowing  of  the  goods  (articles  of  silk  and 
linen)  on  board,  than  was  bestowed  on  them,  that  will  be 
negligence  for  which  the  owners  of  the  vessel  will  be  liable. 
The  jury,  said  Lord  Denman,  in  the  course  of  his  summing 
up,  were  to  see  clearly,  that  the  defendants  were  guilty  of 
negligence  before  they  could  find  a  verdict  against  them.3 

1  Fletcher  v.  Gillespie,  3  Bing.  R.  635. 

2  Abbott  on  Shipp.  p.  346.     "  The  master,"  says  Lord  Lyndhurst,  C.  B. 
"  as  servant  of  the  owner,  is  bound  to  superintend  the  stowage,  and  if  in 
consequence  of  improper  stowage  the  owner  has  been  called  upon,  and 
has  satisfied  any  claim  for  damages,  the  master  is  liable  to  him.      But 
where  the  master  is  told  by  the  owner,  that  some  one  will  come  to  super- 
intend and  do  that,  which  would  otherwise  be  his  duty,  he  is  exonerated. 
If  afterwards,  that  intention  is  changed,  the  owner  should  communicate  it 
to  the  master."     Swainston  t;.  Garrick,  Exchequer  Trin.  T.  1833,  cited 
in  note  to  p.  346,  Abbott  on  Shipp.  5th  Am.  edit.     See  also  the  Schooner 
Reeside,  2  Sumn.  (Cir.  Co.)  R.  567.     As  to  leakage  of  a  vessel  caused 
by  rats,  see  ante,  §  169,  170.     Tf  merchandise  in  good  order  is  entrusted 
to  a  carrier,  and  it  arrives  at  its  destination  in  a  damaged  state,  when  he 
holds  it  subject  to  freight,  he  is  liable  for  the  value  ;  and  if  he  pretends 
that  fraud  and  concealment  were  practised  upon  him,  the  onus  of  proof 
lies  upon  him.     Hart  v.  Jones,  Stuart,  (Low.  Canada)  R.  589. 

3  The  verdict  was  for  the  plaintiff,  Camoys  v.  Scurr,  9  C.  &  Payne,  R. 
383. 


CH.  VI.]          RESPONSIBILITY   OP   COMMON  CARRIERS.  219 

§  213.  A  common  carrier,  when  he  is  expressly  directed 
to  carry  goods  delivered  to  him  in  a  particular  manner  and 
position  is  bound  to  carry  them  in  that  manner  and  position  ; 
and  if  he  carries  them  otherwise,  and  they  are  lost  or  dam- 
aged, the  burden  will  be  upon  him  to  prove,  that  the  loss  or 
damage  was  in  no  degree  attributable  to  his  breach  of  con- 
tract, but  was  occasioned  solely  by  the  act  of  God,  or  the 
public  enemy,  or  the  act  or  fault  of  the  owner  himself. 
Thus,  a  box  containing  a  glass  bottle  filled  with  the  oil  of 
cloves,  was  delivered  to  a  common  carrier,  marked  "  Glass  — 
with  care  —  this  side  up  ;  "  and  it  was  held,  that  this  was  a 
sufficient  notice  of  the  value  and  nature  of  the  contents,  to 
charge  him  with  the  loss  of  the  oil  occasioned  by  his  disre- 
garding such  direction.  It  was  in  evidence,  and  not  de- 
nied, that  the  box  was  stowed  in  such  a  manner  that  the 
marked  side  was  not  kept  up,  and  consequently  the  large 
bottle,  which  was  broken  by  some  means  in  the  passage, 
after  it  was  stowed  and  before  its  arrival,  bore  its  weight 
upon  its  side,  and  not  on  its  bottom.1  But  if  glass,  china,  or 
any  brittle  or  perishable  commodity,  requiring  great  care  for 
its  safe  conveyance,  is  bailed  to  a  carrier  inclosed  in  boxes, 
and  no  directions  are  given  as  to  how  the  boxes  are  to  be  car- 
ried, and  no  notice  of  the  peculiar  nature  of  their  contents,  the 
carrier  is  only  bound  to  take  the  ordinary  care  of  the  boxes, 
which  their  general  character  and  appearance  s.eem  to  re- 
quire. In  such  case,  the  owner  of  the  boxes  is  culpable  for 
concealing  the  peculiar  nature  of  their  contents.2 


1  Hastings  e.  Pepper,  11  Pick.  (Mass.)  R.  41. 

2  See  Webb,  in  re,  6  Scott,  N.  R.  956.     In  the  Superior  Court  of  New- 
York,  April  26,   1848,  Judge   Oakley   presiding,  there  was   an   action, 
(Cariss  v.  Johnston,)  to  recover  damages  for  injuries  done  to  a  case  of 
/oo/rmg'-glasses  shipped  on  board  the  defendant's  vessel.     In  his  charge  to 
the  jury,  the  learned  Judge  said  :  —  "  I  do  not  consider  that  common  car- 
riers are  in  all  cases  responsible  for  not  delivering  property  in  a  sound 
state.     They  are  not  warrantors  that  the  property  shall  remain  safe  and 
sound.     They  are  only  warrantors  for  its  safe  delivery,  and  their  further 
responsibility  depends  upon  whether  they  use  due  care  and  diligence  io 


220  LAW    OF   CARRIERS.  [CH.  VI. 

§  214.  A  common  carrier  is  liable  for  the  safety  of  animals 
of  the  brute  creation  delivered  to  him  for  transportation, 
though  it  has  been  seen,  he  is  not  liable,  as  such,  for  the 
transportation  of  the  persons  of  slaves.  Where  a  dog  had 
been  delivered  to  a  carrier,  and  the  animal  escaped  by 
means  of  slipping  from  the  noose  about  his  neck,  the  carrier 
was  held  liable,  because  he  had  the  means  of  seeing,  that 
the  animal  was  insufficiently  secured ;  and  Lord  Ellen- 
borough  said,  that  the  delivery  of  the  dog  was  not  like  the 
case  of  goods  imperfectly  packed,  since  there,  the  defect  is 
not  visible  ;  but  the  defendant  had  the  means  of  seeing  that 
the  dog  was  insufficiently  secured,  and  he  was  bound  to 
lock  up  the  animal,  or  take  other  proper  means  to  secure 


carrying  the  property,  or  that  negligence  can  be  proved  against  them  by 
any  omission  on  their  part  to  do  what  prudent  men  should  do  under  such 
circumstances.  In  the  present  case,  no  act,  or  omission  of  an  act,  has 
been  proved  to  show  that  the  defendants  were  negligent,  or  that  they  did 
any  thing  to  injure  the  property.  If  they  are  responsible,  it  arises  from 
an  inference  of  law,  that  if  property  is  given  to  common  carriers  for  trans- 
portation, and  when  given  to  them  is  in  a  sound  state,  and  that  it  is  in  an 
unsound  state  when  delivered,  it  is  the  duty  of  the  common  carriers  to 
show  how  it  was  injured.  For  if  the  property  was  in  a  sound  state  when 
delivered  to  the  carrier,  and  found  to  be  injured  when  delivered  to  the 
owner,  it  would  be  imposing  on  him  a  great  hardship  to  be  obliged  to 
show  some  act  of  negligence  on  the  part  of  the  carrier.  For  in  order  to 
do  so,  he  must  go  on  board  the  vessel  to  come  at  the  facts  of  the  case, 
and  possibly  could  not  succeed  in  eliciting  them.  If  in  this  case  the  jury 
were  satisfied  that,  when  the  goods  were  delivered  at  the  wharf,  or  put  on 
board  the  vessel,  they  were  then  in  a  sound  state,  and  that  on  their  arrival 
at  Baltimore  they  were  found  to  be  broken,  then  the  defendants  are 
responsible,  unless  they  show  how  it  occurred.  In  this  case,  there  was 
nothing  to  show  that  the  injury  might  have  occurred  from  perils  of  the 
sea,  and  it  is  difficult  to  account  for  how  it  could  have  happened,  unless 
there  was  some  negligence  on  the  part  of  the  defendants.  The  law  pre- 
sumes, that  if  the  goods  were  safe  when  put  on  board,  that  the  injury  to 
them  arose  from  negligence  on  the  part  of  the  defendants,  unless  they 
show  the  contrary.  And  if  the  injury  arose  from  negligence  on  the  part 
of  the  captain  or  owners,  then  they  are  responsible  for  it,  otherwise  they 
are  not."  Journ.  of  Comm.  April  27,  1848. 


CH.  VI.]        RESPONSIBILITY   OF  COMMON  CARRIEKS.  221 

the  animal.1  If  a  horse  which  escapes  from  his  fastenings 
on  board  of  a  steamboat  and  is  lost  in  the  river,  the  owners 
of  the  boat  are  responsible ;  for  the  horse  must  have  been 
negligently  fastened  or  the  loss  would  not  have  occurred  ; 
and  primd  facie,  this  negligence  is  attributable  to  the  owners 
of  the  boat  or  their  servants.2  So  where  an  animal  is  sent 
over  a  railroad,  the  company  are  liable  for  any  injury  it  may 
sustain  either  by  the  improper  construction  of  the  carriage, 
or  the  want  of  reasonable  equipments,  or  the  improper  posi- 
tion of  the  carriage  in  the  train.3  The  rule  with  regard  to 
proper  equipments  to  insure  the  safety  of  an  animal  holds 
also  as  to  ferry-boats.  A  special  verdict  was  found  in  a 
case,  that  the  defendant  was  the  owner  of  a  public  ferry  ; 
that  the  chain  with  which  the  flat  was  fastened  to  the  bank 
was  unusually  large  and  apparently  strong ;  that  in  attempt- 
ing to  drive  the  wagon  of  the  plaintiff,  heavily  laden,  into  the 
flat,  the  chain  broke,  in  consequence  of  which  the  horse  of 
the  plaintiff  was  so  much  injured  as  to  be  of  no  value  ;  that 
several  wagons,  equally  heavy  laden  had  before  passed  there  ; 
that  the  chain  had  been  for  some  time  used  thereat ;  that  the 
blacksmith,  who  mended  it,  was  of  opinion  that  it  was  equal 
to  any  chain  he  was  capable  of  making ;  that  there  was  no 
negligence  on  the  part  of  the  defendant's  ferry-man.  The 
Court  below  pronounced  judgment  in  favor  of  the  defend- 
ant ;  but  on  a  motion  to  reverse  the  judgment  in  favor  of  the 
plaintiff,  it  was  entered  for  the  plaintiff,  the  Court,  in  giving 
their  opinion,  saying  —  "  It  must  be  known  to  every  ferry- 
man, that  the  strain  upon  a  chain,  when  the  fore  wheels  of 
a  loaded  wagon  first  strike  against  a  flat  to  enter  it,  is  very 
great,  and  that,  therefore,  he  ought  to  be  provided  with  a 


1  Stuart  v.  Crawley,  2  Stark.  R.  323. 

2  Porterfield  v.  Brooks,  8  Humph.  (Tenn.)  R.  497. 

3  So  ruled  by  Lord  C.  J.  Denman  in  Walker  v.  London  &  Southwest 
Railway  Co.,  Kingston  Spring  Assizes,  1843,  cited  in  Waif.  Sum.  of  Law 
of  Railways,  305.     Palmer  v.  Grand  Junction  Railroad  Co.  4  M.  &  Welsh. 
R.  749. 

19* 


222  LAW    OF   CARRIERS.  [CH.  VI. 

chain  of  great  strength  to  support  such  a  blow,  but  particu- 
larly when  the  descent  from  the  bank  to  the  flat  is  steep  and 
considerable."  The  Court,  further  said,  that,  "  in  cases  of 
this  kind  it  would  be  difficult  to  draw  a  line  between  what 
was  due  diligence  or  what  was  not ;  but  it  is  not  difficult  to 
prove,  that,  though  an  unlocked  for  accident  of  this  sort 
might  happen,  without  the  ferry-man's  being  provided 
against  it,  he  ought,  however,  to  be  accountable  for  the 
injury  sustained."  1 

§  214  a.  If  the  animal  is  injured  or  destroyed  by  the 
peculiar  risks  to  which  it  is  exposed,  the  carrier  is  clearly 
excusable.  Thus,  if  horses,  or  other  animals,  are  trans- 
ported by  water,  and  in  consequence  of  a  storm,  they  break 
down  the  partitions  between  them,  and  by  kicking  each 
other,  some  of  them  are  killed,  the  carrier  will  be  excused  ; 
and  it  will  be  deemed  a  loss  by  perils  of  the  sea.2  And,  in 
case  of  an  animal  sent  by  railway,  it  has  been  ruled,  that  the 
company  are  not  liable  for  an  accident  arising  from  the  ani- 
mal's own  viciousness  or  want  of  temper.3  Such  a  case 
would  seem  to  be  analogous  to  the  case  of  the  loss  of  mer- 
chandise owing  to  some  inherent  defect  which  caused  the 
destruction  of  it  while  in  transit.4 

§  215.  Sometimes  goods  are  put  on  board  a  vessel  to  be 
stowed  on  deck,  and  they  thus  become  liable  to  be  thrown 
overboard  in  cases  of  extreme  danger  to  the  vessel  and  crew, 
and  in  such  event,  the  loss  falls  on  the  owner  of  the  goods, 
unless  so  far  as  the  owner  of  the  goods  may  be  entitled  to 


1  Rutherford  v.  M'Gowen,  1  N.  &  McCord,  (S.  C.)  R.  17. 

2  Gabay  v.  Lloyd,  3  B.  &  Cress.  R.  793 ;  Lawrence  v.  Aberdeen,  5 
B.  &  Aid.  R.  107  ;  And  see  ante,  §  24. 

3  Walker  v.  London  and  Southwestern  Railway  Co.,  w£.  sup. ;  and  see 
also  post,  note  to  $  277. 

4  See  ante,  §  210,  et  seq. 


CH.  VI.]        RESPONSIBILITY    OF   COMMON   CARRIERS.  223 

contribution,  as  in  case  of  a  general  average.1  Yet,  if  the 
goods  are,  without  necessity,  thrown  overboard,  the  carrier 
will  be  chargeable  with  the  loss.2  If  a  ferryman  should,  in 
the  emergency  of  a  storm,  throw  overboard  a  box  of  jewels, 
and  it  was  done  from  absolute  necessity  to  save  life,  he 
would  not  be  responsible ;  but  if  done  rashly,  it  would  be 
otherwise.8 

§  216.  In  an  action  against  the  defendants,  as  owners  of  a 
certain  schooner,  for  not  delivering  flour  shipped  at  George- 
town for  Portsmouth,  it  appeared,  that  twenty  barrels  of  it 
were  shipped  to  go  under  deck  at  a  certain  price  per  barrel, 
and  one  hundred  and  forty  barrels  were  shipped  to  go  on 
deck,  at  half  that  price  for  freight.  It  appeared,  that  on 
coming  on  Nantucket  shoal,  in  bad  weather,  and  with  a 
heavy  sea,  the  vessel  struck,  and  was  in  such  danger  as  to 


1  Story  on  Bailm.  §  530  a,  4th  edit.  ;  Smith  v.  Wright,  1  Caines  (N.  Y.) 
R.  43  ;  Lenox  v.  U.  Ins.  Co.  3  Johns.  (N.  Y.)  Cases,  178. 

2  Ibid. 

3  Mouse's  case,  12  Co.  R.  63 ;  Bancroft's  case,  cited  in  Kenrick  v. 
Eggleston,  Aleyn,  R.  93;  and  see  Jones  on  Bailm.  107,  108;  Bird  v. 
Astcock,  2  Bulst.  R.  280;  2  Roll.   Abr.  567.     "The  case  of  Bancroft, 
as  cited  by  Lord  Chief  Justice  Rolle,  would  seem  to  imply  a  responsibility 
of  the  carrier  even  in  cases  of  jettison.     It  is  stated  thus  :  A  box  of  jewels 
had  been  delivered  to  a  ferryman,  who  knew  not  what  it  contained,  and  a 
sudden  storm  arising  in  the  passage,  he  threw  the  box  into  the  sea.     Yet 
it  was  resolved  that  he  should  answer  for  it.     Sir  William  Jones  suspects, 
that  there  must  have  been  some  proof  of  culpable  negligence  in  the  case, 
and  that  probably  the  casket  was  both  small  and  light  enough  to  have  been 
kept  longer  on  board  than  other  goods.     Even  then  the  case  would  be 
sufficiently  hard  ;  as  the  ferryman  did  not  know  the  contents,  and  might  have 
acted  for  the  best.     But  if  the  doctrine  of  the  case  be,  that  jettison  will 
not,  in  a  clear  case  of  necessity,  discharge  the  carrier,  it  is  not  law ;  for  it 
was  expressly  decided,  in  Lord  Coke's  time,  in  the  case  of  a  bargeman 
(cited  by  Lord  Coke  in  Bird  v.  Astcock,  2  Bulst.  R.  280,)  that  where 
goods  were  thrown  overboard  in  a  great  storm  to  save  the  lives  of  the  pas- 
sengers, by  lightening  the  barge,  the  bargeman  was  exonerated  ;  for  the 
storm  was  the  act  of  God,  and  the  occasion  of  throwing  them  overboard." 
Story  on  Bailm.  §  531. 


224  LAW   OF   CARRIERS.  [CH.  VI. 

render  it  necessary,  for  the  preservation  of  the  lives  of  the 
crew,  and  for  the  safety  of  the  vessel  and  cargo,  to  throw 
some  part  of  the  latter  overboard  ;  and  accordingly  the  whole 
of  the  deck  load,  and  twenty  barrels  from  the  hold,  being 
the  plaintiff's  flour,  were  thrown  over.  The  value  of  the 
twenty  barrels  under  deck  was  afterwards  settled  for  in  the 
general  average,  leaving  only  the  deck  load  in  controversy. 
The  defendants  insisted,  that  they  were  absolved  from  lia- 
bility for  the  goods  shipped  on  deck,  both  by  the  general 
principles  of  the  law  merchant,  and  by  the  usage  and  cus- 
tom of  America.  The  defendants  were  held  not  liable  to 
contribution,  as  it  was  in  evidence,  that  the  jettison,  by 
which  the  plaintiff's  loss  was  occasioned,  was  justified  by 
the  highest  necessity  ;  and  as  it  was  not  pretended,  that 
the  property  could  have  been  preserved  by  any  exertion  on 
the  part  of  the  master  or  mariners.1 

§  217.  The  law  on  the  subject  of  jettison  is  thus  laid 
down  by  Tindal,  C.  J.,  in  the  case  of  Gould  v.  Oliver  : 2 
"  When  the  loading  on  the  deck  has  taken  place  with  the 
consent  of  the  merchant,  it  is  obvious  that  no  remedy  against 
the  ship-owner  or  master  for  a  wrongful  loading  of  the  goods 
on  deck  can  exist.  The  foreign  authorities  are  indeed  ex- 
press on  that  point ;  3  and  the  general  rule  of  the  English 
law,  that  no  one  can  maintain  an  action  for  a  wrong,  where 
he  has  consented  or  contributed  to  the  act  which  occasioned 
his  loss,  leads  to  the  same  conclusion."  4 

§  218.  If  the  goods  are,  without  the  consent  of  the  mer- 


1  Dodge  ».  Bartol,  5  Greenl.  (Me.)  R.  286. 

2  Gould  v.  Oliver,  4  Bing.  (N.  C.)  R.  142. 

3  Valin,  tit.  dec  Capitaine,  art.  12  ;  Consol  del  Mar,  c.  183. 

4  It  has  been  held  in  the  Supreme  Court  of  New  Brunswick,  that  a 
master  of  a  ship  \vlio  lias  sinned  tin*  usual  bill  of  lading,  is  not  liable  for 
a  loss  by  the  jettison  of  goods  vshich  have  been  laden  on  deck  with  the 
knowledge  and  consent  of  the  shipper  and  consignee.     Johnston  v.  Crane, 
1  Kerr,  R.  356. 


CH.  VI.]         RESPONSIBILITY   OF   COMMON   CARRIERS.  225 

chant,  or  contrary  to  established  usage,  stowed  on  deck,  and 
are,  from  their  being  so  placed,  thrown  overboard  in  tempest- 
uous weather,  the  carrier  will  be  answerable  for  the  loss  by 
the  jettison.^  Where  the  master  of  a  vessel  received  hogs- 
heads of  gin  on  board,  to  be  transported  at  customary  freight, 
which  were  stowed  on  deck,  and  which  were  ejected  during 
the  voyage  by  reason  of  tempestuous  weather  ;  it  was  held, 
that  the  owners  were  liable  for  the  loss,  unless  such  stowage 
was  authorized  by  consent  of  the  merchant,  or  by  custom. 
It  was  not  pretended,  that  the  jettison  was  without  justifiable 
cause,  but  the  complaint  was  careless  stowage,  in  putting 
the  gin  on  deck,  when  it  ought  to  have  been  put  in  the 
hold.2 

§  219.  In  respect  to  the  doctrine  of  general  average,  which 
arises  in  cases  of  jettison,  and  other  accidents  in  cases  of 
transportation  of  goods  by  sea,  the  law  allows  a  compensa- 
tion to  the  owners  of  the  goods,  where  the  goods  are  thrown 
overboard  for  the  common  benefit,  and  they  may  demand  a 
pro  rata  contribution,  from  all  other  persons  deriving  a  ben- 
efit from  the  sacrifice.3  This  subject,  however,  more  appro- 
priately belongs  to  a  treatise  on  the  law  of  shipping.4  Carriers 
on  land,  it  may  be  added,  are  entitled  to  the  same  equity, 
and  may  be  entitled,  if  not  to  a  common  contribution,  in  the 
nature  of  a  general  average,  at  least,  to  compensation  for 
expenses  incurred  by  them  about  the  preservation  of  the 
goods  from  extraordinary  perils,  which  do  not  properly  be- 
long to  them  as  carriers.5 


1  3  Kent,  Comm.  206  ;  Crane  v.  The  Rebecca,  Ware,  R.  188,  cited  in 
Story  on  Bailm.  note  to  §  530  a ;  Smith  v.  Wright,  ub.  sup.  ;  Lenox  v. 
U.  Ins.  Co.  ub.  sup.  ;  Waring  v.  Morse,  7  Ala.  R.  343. 

2  Barber  v.  Brace,  3  Conn.  R.  9. 

3  Smith,  Mer.  Law,  260  ;  Story  on  Bailm.  §  583. 

4  See  Abbott  on  Shipp.  Ft.  3,  ch.  8 ;  Stevens  on  Average. 

5  Story  on  Bailm.  $  389,  584,  and  ante,  §  42,  43. 


226  LAW   OF   CARRIERS.  [CH.  VII. 


CHAPTER  VII. 

OF  THE  RESPONSIBILITY  OF  COMMON  CARRIERS  AS  RESTRICTED, 
LIMITED,  AND  QUALIFIED,  BY  SPECIAL  CONTRACT,  AND  BY 
STATUTE. 

§  220.  IN  addition  to  the  two  instances  of  exemption  from 
the  responsibility  of  common  carriers,  (losses  by  the  act  of 
God  and  the  public  enemy,)  which  are  accorded  by  the 
Common  Law,  there  is  the  instance  of  exemption  by  their 
oivn  act,  viz.  that  of  a  special  acceptance.  The  principles  of 
the  Common  Law  are  to  be  understood  with  the  limitation 
that  there  is  no  special  contract  between  the  parties,  which 
varies  the  general  obligation  of  carriers,  for  if  there  clearly 
appear  such  a  contract,  it  governs  the  case.1  The  right  of 
admitting  qualified  acceptances  of  common  carriers,  seems 
to  have  been  asserted  in  early  times.  Thus,  a  special  accept- 
ance is  recommended  by  Lord  Coke  in  a  note  to  Southcote's 
case,2  in  which  he  says,  that  if  goods  be  delivered  to  one  to 
be  delivered  over,  it  is  good  policy  to  provide  for  himself  in 
special  manner,  for  doubt  of  being  charged  by  his  general 
acceptance.  Sir  Matthew  Hale,  in  giving  judgment  in  Mors 
v.  Slue,3  says,  that,  "  if  the  master  would,  he  might  have 
made  a  caution  for  himself,  which  he  omitting,  and  taking 
in  goods  generally,  he  shall  answer  for  what  happens." 
Although  in  these  cases,  the  point  was  not  expressly  adjudg- 
ed, that  a  common  carrier  may  restrict  his  liability  by  express 


1  See  ante,  §  59. 

2  Southcote's  case,  4  Co.  R.  84  ;  and  see  the  case  cited  ante,  note  to 
$20. 

3  Mors  v.  Slue,  1  Vent.  R.  238,  (24  and  25  Car.  II.)  ;  and  see  Kenrig 
v.  Eggleston,  Aleyn,  R.  93. 


CH.  VII.]  LIMITATION  BY   EXPRESS   CONTRACT.  227 

contract,  yet  such  was  assumed  to  be  good  law  ;  and  it  was 
only  so  assumed  by  Mr.  J.  Yates,  in  Gibbon  v.  Paynton,1 
and  by  Lord  Ellenborough,  in  Leeson  v.  Holt.2  In  Nich- 
olson v.  Willan,3  the  last  named  learned  Judge  found  no 
direct  adjudication,  that  a  common  carrier  may  limit  his 
Common  Law  responsibility,  by  a  special  contract ;  but 
he  relied  on  the  fact,  that  such  an  exemption  had  never 
been,  by  express  decision,  denied.  But  there  was  a  direct 
adjudication,  in  the  year  1800,  in  an  action  of  assurnpsit, 
at  nisi  prius,  before  Lord  Kenyon,  against  the  defendant, 
as  a  common  carrier,  for  not  safely  carrying  a  chest  of  tea 
from  London  to  Leeds.  The  carrier  demanded  a  certain 
sum  for  booking,  and  refused  to  take  charge  of  the  tea  un- 
less such  sum  was  paid  ;  and  it  was  held,  that  he  was  not 
liable  to  an  action  if  the  tea  was  left  without  being  paid 
for  and  was  lost.  Lord  Kenyon  said  :  "  When  no  rate  is 
fixed  by  law,  the  carrier  is  entitled  to  say  on  what  terms  he 
will  carry ;  he  is  not  obliged  to  take  every  thing  which  is 
brought  to  his  warehouse,  unless  the  terms  on  which  he 
chooses  to  undertake  the  risk  are  complied  with  by  the 
person  who  employs  him.  The  old  mode  of  declaring  used 
to  be  on  the  custom  of  the  realm ;  but  this  is  in  assumpsit, 
it  is  founded  in  contract,  and  the  contract  must,  therefore, 
govern  the  parties."  4  The  doctrine  is  considered  to  be  now 
fully  recognized  and  settled,  beyond  any  reasonable  doubt, 
in  England.5 

§  221.  The  subject  was  fully  considered  in  Gould  v.  Hill, 


1  Gibbon  v.  Paynton,  4  Burr.  R.  2301. 

2  Leeson  v.  Holt,  1  Stark.  R.  186. 

3  Nicholson  v.  Willan,  5  East,  R.  513. 

4  Anonymous  v.  Jackson,  Peake's  Add.  N.  P.  Cas.  185. 

5  Story  on  Bailm.  $  549  ;  Clay  v.  Willan,  1  H.  Bl.  R.  298  ;  Harris  v. 
Packwood,  3  Taunt.  R.  264  ;  Smith  v.  Home,  8  Ib.  146  ;  Riley  v.  Home, 
5  Bing.  R.  217;   and  see  English  cases  cited  in  Hollister  v.  Nowlen, 
Appx.  p.  xviii.,  and  in  Cole  v.  Goodwin,  Appx.  p.  xxxiii. 


228  LAW   OF   CARRIERS .  [CH.  VII. 

in  New  York,1  and  the  conclusion  arrived  at  by  Cowen,  J., 
who  gave  the  opinion  of  the  Court,  was,  that  a  common 
carrier  could  not  restrict  his  obligation,  even  by  a  special 
contract.2  But  Bronson,  J.,  in  giving  the  opinion  of  the 
Court,  in  Hollister  v.  Nowlen,3  was  not  disposed  to  deny, 
that  a  common  carrier  may,  by  express  contract,  limit  his 
responsibility.  Attention  was  given  to  the  subject  in  the  late 
case  of  the  New  Jersey  Steam  Navigation  Company,  in  the 
Supreme  Court  of  the  United  States,4  and  the  Court  ex- 
pressed themselves  unable  to  perceive  any  well  founded 
objection  to  a  restriction,  by  a  special  contract,  or  any  strong- 
•  er  reasons  for  forbidding  it,  than  exists  in  the  case  of  any 
other  insurer  of  goods,  to  which  his  obligation  is  analogous  ; 
and  which  depends  altogether  upon  the  contract  between 
the  parties.5 

§  222.  In  respect  to  carriers  by  water  and  by  sea,  when- 
ever the  master  and  owners  of  a  ship  engage  with  separate 
merchants  to  convey  the  goods  to  the  place  of  her  destination, 
the  contract  is  said  to  be  for  a  conveyance  in  a  general 
ship  ;  6  and  it  is  usual  to  advertise  such  ships  in  the  news- 
papers, or  in  cards  and  handbills  ;  and  care  should  be  taken 
in  doing  this  to  insert  nothing  in  the  advertisements  which 
it  is  not  the  ship-owner's  intention  to  make  strictly  good  ; 
since  it  may  not  be  clear,  that  some  of  the  terms  of  such 


1  Gould  v.  Hill,  2  Hill  (N.  Y.)  R.  623. 

2  See  the  case  more  fully  stated,  post  ;  and  see  the  opinion  of  Cowen, 
J.,  in  Cole  v.  Goodwin,  Appx.  p.  xxxiii. 

3  Appx.  p.  xviii. 

4  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  Dec. 
Term  Sup.  Co.  U.  States,  1847,  Appx.  liv.    See  also  the  opinion  of  Huston, 
J.,  in  Bingham  v.  Rogers,  6  Watts  &  S.  (Penn.)  R.  499. 

5  In  New  York  the  question  considered  by  Bronson,  J.,  as  "  perhaps 
debatable,"  Wells  v.  Steam  Navigation  Co.  2  Comst.  (N.  Y.)  R.  209. 
See  post,  §  239. 

6  See  ante,  §  89. 


CH.  VII.]  LIMITATION  BY  EXPRESS   CONTRACT.  229 

advertisement  may  not  be  construed  as  incorporated  into  the 
contract.1 

§  223.  But  the  instrument  to  which  reference  is  generally 
had  for  the  terms  of  such  a  contract  is  the  Bill  of  Lading, 
the  substance  of  which  is  a  formal  acknowledgment  of  a 
receipt  of  goods,  and  an  engagement  to  deliver  them  to  the 
consignee  or  his  assigns.2  Several  copies  of  such  written 
contract  are  commonly  made  out,  of  which  the  merchant 
sends  one  or  two  to  the  person  for  whom  the  goods  are 
destined,  and  retains  one  for  himself.3  The  modern  English 
form  of  the  bill  of  lading  contains  these  words,  —  "  the  act 
of  God,  and  the  king's  enemies,  fire,  and  all  and  every  other 
dangers  of  the  seas,  rivers  and  navigations  of  whatever 
nature  and  kind  soever,  excepted."  The  two  first  of  these, 
we  have  seen,  are  exceptions  even  at  Common  Law ;  and 
the  third  was  made  so,  in  England,  by  stat.  26  Geo.  3,  c.  86r 
s.  2,  which  enacts  "  that  no  owner  or  owners  of  any  ship  or 
vessel  shall  be  subject  or  liable  to  answer  for,  or  make  good 
to,  any  one  or  more  person  or  persons  any  loss  or  damage 
which  may  happen  to  any  goods  or  merchandise  whatsoever 
which  shall  be  shipped,  taken  in,  or  put  on  board,  any  such 
ship  or  vessel,  by  reason  or  means  of  any  fire  happening  to 
or  on  board  of  said  ship  or  vessel."  Lord  Tenterden  re- 
marks, that  the  master  is  not  mentioned  therein,  and  that  it 
may  therefore  be  doubtful,  whether  his  responsibility  is  in 
this  case  removed  by  the  statute,  but  that  the  insertion  of 
the  word  "  fire  "  in  the  bill  of  lading  certainly  removes  it.4 


1  Abbott  on  Shipp.  Pt.  2,  ch.  2. 

2  Per  Rogers,  J.,  Coke  v.  Cordova,  1  Rawle  (Penn.)  R.  203  ;  Fergu- 
son ».  Cappeau,  6  H.  &  Johns.  (Md.)  R.  394. 

3  Smith,  Her.  Law,  176. 

4  Abbott  on  Shipp.  Pt.  3,  ch.  4.     "  The  same  statute  enacts  (sect.  3,) 
that  no  master,  owner,  or  owners  of  any  ship  or  vessel,  shall  be  liable  to 
answer  for,  or  make  good  any  loss  or  damage  which  may  happen  to  any 
gold,  silver,  diamonds,  watches,  jewels,  or  precious  stones,  which  shall  be 

20 


230  LAW    OF   CARRIERS.  [CH.  VH. 

§  224.  In  this  country,  although  the  loss  of  the  property 
delivered  for  transportation,  by  an  accidental  fire  furnishes 


shipped,  taken  in,  or  put  on  board  any  such  ship  or  vessel,  by  reason  or 
means  of  any  robbery,  embezzlement,  making  away  with,  or  secreting 
thereof,  unless  the  owner  or  shipper  thereof  shall,  at  the  time  of  shipping 
the  same,  insert  in  his  bill  of  lading,  or  otherwise  declare  in  writing,  to 
the  master,  owner,  or  owners  of  such  ship  or  vessel,  the  nature,  quality, 
and  value  of  such  gold,  silver,  diamonds,  watches,  jewels,  or  precious 
stones.  By  stat.  6  Geo.  4,  (Pilotage  Act,)  c.  125,  a.  53,  owners  and 
masters  of  ships  are  exempted  from  liability  for  any  damage  arising  from 
the  want  of  a  licensed  or  duly  qualified  pilot,  unless  it  be  proved  that  such 
want  arose  from  any  refusal  to  take  one  on  board,  or  from  wilful  neglect, 
in  not  heaving  to,  or  using  all  practicable  means  consistent  with  the  ship's 
safety,  for  the  purpose  of  taking  on  board  any  pilot  who  may  offer ;  and 
sect.  55  exempts  them  from  liability  for  damage  arising  from  the  neglect, 
default,  incompetency,  or  incapacity  of  any  licensed  pilot  in  charge  of  the 
vessel,  so  long  as  such  pilot  shall  be  duly  qualified  to  have  charge  of  the 
vessel,  or  no  duly  qualified  pilot  shall  have  offered  to  take  charge  thereof. 
It  will  be  seen  that  the  Common  Law  liability  of  ship-owners  is  discharged 
to  a  considerable  extent  by  these  enactments;  where  it  remains,  it  is 
restricted  to  a  certain  ascertainable  amount  by  stat.  7,  Geo.  2,  c.  15, 
which  exempts  the  owners  from  responsibility  for  loss,  by  reason  of  any 
embezzlement,  secreting,  or  making  away  with,  by  the  master  or  mariners  ; 
or  for  any  act,  matter,  or  thing,  damage,  or  forfeiture,  done,  occasioned, 
and  incurred  by  the  same  persons,  without  the  privity  of  the  owners, 
further  than  the  value  of  the  ship,  with  her  appurtenances,  and  the  freight 
due,  or  to  grow  due  for  the  voyage  wherein  such  loss  happened ;  (sect.  1. 
See  Sutton  v.  Mitchell,  1  T.  R.  18.)  Stat.  26  Geo.  3,  c.  86,  s.  1,  extends 
the  provisions  of  this  act  to  all  cases  of  robbery,  though  the  master  or 
mariners  be  not  concerned  therein.  By  stat.  53  Geo.  3,  c.  159,  owners 
are  not  liable  to  answer  for,  or  make  good  any  loss  or  damage  arising  by 
reason  of  any  act,  neglect,  matter,  or  thing  done,  committed,  and  occa- 
sioned without  the  fault  and  privity  of  such  owner  or  owners,  which  may 
happen  to  any  goods,  wares,  merchandises,  or  other  things  laden  or  put 
on  board  the  ship,  further  than  the  value  of  the  ship  and  freight  due,  or  to 
grow  due,  during  the  voyage  which  may  be  in  prosecution,  or  contracted 
for  at  the  time  of  the  happening  of  the  loss.  This  statute  further  defines 
what  shall  be  considered  freight,  within  its  meaning,  (sect.  2,)  and  that  of 
the  two  prior  acts  ;  and  orders  that  distinct  losses,  happening  during  the 
same  voyage,  or  same  interval  between  two  voyages,  shall  be  compensated 
in  the  same  way,  and  to  the  same  extent,  as  if  no  other  loss  had  happened 
during  the  same  voyage  or  interval ;  and,  as  well  as  the  two  former  ones, 


CH.  VII.]  LIMITATION  BY  EXPRESS   CONTRACT.  231 

no  sufficient  excuse,  yet  it  may  be  rendered  otherwise  by 
the  terms  of  the  bill  of  lading.1  In  Patton  v.  Magrath,  in 
South  Carolina,2  Richardson,  J.,  says  :  "  Need  I  remind  the 
owners  of  steamboats,  that  they  have  but  to  give  public 
notice,  that  they  will  not  be  liable  in  certain  classes  of  cases  ; 
and,  to  deceive  no  one,  give  no  other  bill  of  lading  but  with 
the  express  written  condition,  (  not  to  be  liable  for  accidents 
by  fire,'  and  they  make  the  desired  exception."  In  Swindler 
v.  Hilliard  &  Brooks,  in  the  Court  of  Appeals  of  South  Car- 
olina, in  1846,3  it  was  held,  that  a  common  carrier  might 
limit  his  liability  by  a  special  contract,  that  is,  by  a  bill  of 
lading  containing  the  exception,  "  dangers  of  fire  and  navi- 
gation only  excepted  ;  "  and  that  the  term  fire  meant  any 
fire,  and  was  not  restricted  to  fire  originating  from  the  fur- 
nace of  the  boat.  It  may  sometimes,  however,  be  somewhat 
questionable  what  is  a  loss  by  fire.  Where  the  register  of  a 
sugar-house  was  kept  shut  up  by  mistake,  so  that  the  sugar 
was  overheated  and  spoiled,  this  was  held,  in  a  suit  on  a 
policy  of  insurance,  not  to  be  a  loss  by  fire,  but  by  misman- 
agement.* 

§  225.  In  the  important  case  of  the  New  Jersey  Steam 


provides  a  proportionable  compensation  in  cases  where  the  value  of  the 
ship  and  freight  is  less  than  the  total  amount  of  losses,  and  a  mode  of  dis- 
tribution and  relief  in  equity.  But  this  act  does  not  extend  to  vessels  used 
solely  in  rivers  and  inland  navigations,  nor  to  any  ship  not  duly  registered 
according  to  law  ;  nor  do  any  of  the  acts  extend  to  lighters  and  gabbets  ; 
(Hunter  v.  M'Gown,  1  Bligh,  573.)  The  benefit  of  the  three  last  men- 
tioned acts  does  not  extend  to  masters  ;  and  the  last  contains  a  provision 
against  relieving  the  master,  who  happens  to  be  a  part  owner,  from  respon- 
sibility ;  yet  if  he  be  sued  along  with  the  part  owners,  he  will  be  protected 
as  well  as  they  ;  for  it  is  a  rule,  that  the  damages  given  against  co-defend- 
ants must  be  one  and  the  same  sum  ;  (Wilson  v.  Dickson,  2  B.  &  A.  2.") 

1  Parker  v.  Flagg,  13  Shep.  (Me.)  R.  181. 

2  Patton  v.  Magrath,  Dud.  (S.  C.)  R.  159. 

3  Swindler  v.  Hilliard,  2  Rich.  (S.  C.)  R.  286. 

4  Austin  u.  Drew,  Taunt.  R.  435  ;  4  Campb.  R.  380. 


232  LAW   OF   CARRIERS.  [CH.  VII, 

Navigation  Company  v.  Merchants  Bank,  in  the  Supreme 
Court  of  the  United  States,1  it  appeared  that  one  W.  F. 
Harnden  was  engaged  in  the  business  of  carrying  for  hire 
packages  of  goods,  specie  and  bundles  of  all  kinds,  for  any 
persons  who  would  employ  him,  to  and  from  the  cities  of 
New  York  and  Boston  ;  and  that  his  mode  of  conveying 
them  was  the  established  public  conveyances  between  those 
cities.  That  in  the  exercise  of  his  employment,  he  had 
entered  into  an  agreement  with  the  above-mentioned  Com- 
pany, by  which,  in  consideration  of  a  certain  sum  per  month, 
he  was  to  have  the  privilege  of  transporting  in  their  steamers 
a  wooden  crate  of  given  dimensions,  subject  to  these  condi- 
tions. 1.  "  The  crate,  with  its  contents,  to  be  at  all  times 
exclusively  at  the  risk  of  the  said  Harnden,  and  the  company 
not,  in  any  event,  to  be  responsible,  either  to  him  or  his  em- 
ployers, for  the  loss  of  any  goods,  wares,  merchandise, 
money,  &c.  to  be  conveyed  or  transported  by  him  in  said 
boats,  or  otherwise  in  the  boats  of  said  company.  2.  That 
he  should  annex  to  his  advertisements  published  in  the  public 
prints,  the  following  notice,  which  was  also  to  be  annexed  to 
his  receipt  of  goods  or  bills  of  lading.  '  Take  Notice  :  Wil- 
liam F.  Harnden  is  alone  responsible  for  the  loss  or  injury 
of  any  articles  committed  to  his  care  ;  nor  is  any  risk  assumed, 
nor  can  any  be  attached  to  the  proprietors  of  the  steamboats 
in  which  his  crate  may  be,  and  is  transported,  in  respect  to 
it,  or  its  contents,  at  any  time.' '  The  question  being  made, 
whether  it  is  competent  for  the  common  carrier  to  restrict 
his  obligation  by  such  an  agreement,  the  Court  declared  it 
as  their  opinion,  that,  as  the  extraordinary  duties  annexed 
to  his  employment  concerns  only,  in  the  particular  instance, 
the  parties  to  the  transaction,  involving  simply  rights  of 
property,  the  safe  custody  and  delivery  of  the  goods,  they 
were  unable  to  perceive  any  well  founded  objection  to  the 
restriction.  The  extent  of  the  restriction  of  the  Common 


1  New  Jersey  Steam  Navigation  Co.  v.  Merchants  Bank,  Appx.  p.  liv. 


CH.  VH.)  LIMITATION  BY  EXPRESS   CONTRACT.  233 

• 

Law  liability,  in  such  cases  of  express  contract,  the  Court 
held,  is,  that  the  carrier  is  not  to  be  regarded  in  the  exercise 
of  his  public  employment,  but  as  a  private  person,  who  in- 
curs no  responsibility  beyond  that  of  a  private  carrier,  or  of 
an  ordinary  bailee  for  hire  ;  or,  in  other  words,  he  was  an- 
swerable only  for  misconduct  or  the  want  of  ordinary  dili- 
gence.1 

§  226.  There  has  prevailed,  for  a  long  period,  a  practice, 
in  respect  to  carriers  by  water,  of  accompanying  the  ship- 
ment with  a  bill  of  lading,  which  specifies  the  "  perils  "  or 
the  "  dangers  "  of  the  sea,  or  of  the  river,  as  excepted.  The 
precise  meaning  of  these  words,  and  whether  it  is  exactly 
commensurate  with  that  of  the  words  "  act  of  God,"  (from 
liability  for  losses  by  which  the  carrier  is  by  law  always 
exempted,)  has  been  already  considered.2  In  Williams  v. 
Grant,  in  Connecticut,3  Mr.  J.  Gould  held,  that  common  car- 
riers were  not  liable  for  losses  by  perils  of  the  sea,  whether 
the  bill  of  lading  contained  any  exception  or  not ;  and  the 
same  point  was  affirmed  in  the  same  State,  by  the  whole 
Court  in  a  subsequent  case.4  But,  nevertheless,  as  has  been 
shown,  the  words  in  question  do  extend  to  some  events  not 
attributable  to  natural  causes.5  In  any  event,  however,  as 
has  also  been  shown,  they  do  not  include  losses  that  might 
have  been  avoided  by  the  exercise  of  reasonable  skill  and 
diligence,  and  by  proper  conduct.6  And  so  likewise  may  it 
be  said  of  the  exception  in  bills  of  lading  of  "  dangers  of 


1  As  has  been  laid  down,  ante,  Chap.  III.     In  the  case  of  Hale  v. 
New  Jersey  Steam  Navigation  Company,  15  Conn.  R.  539,  there  was  no 
bill  of  lading.     See  the  case  stated,  ante,  §  158. 

2  Ante,  §  166. 

3  Williams  t>.  Grant,  1  Conn.  R.  487. 

4  Crosby  v.  Fitch,  12  Conn.   R.  410.     See  also  Neal  v.  Sanderson, 
2  Smedes  &  Marsh.  (Missis.)  R.  572. 

5  Ante,  §  166-169. 
Ante,  $  167. 

20* 


234  LAW  OF    CARRIERS.  [CH.  VII. 

the  lake"  notwithstanding  which  the  owners  are  liable  for  a 
loss  by  negligence  ;  1  and  so  also  are  they  for  a  loss  in  conse- 
quence of  deviation.2  Where  a  bill  of  lading  was  signed  by 
the  master  of  a  vessel,  acknowledging  the  receipt  of  certain 
goods,  and  stating  that  they  were  to  be  transported  from 
Buffalo  to  Cleveland,  "  the  dangers  of  the  lakes  and  rivers 
only  excepted :  "  it  was  held,  that  the  legal  effect  of  this 
agreement  was  to  convey  the  goods,  from  Buffalo  to  Cleve- 
land, by  the  most  direct  route.3 

§  226  a.  No  exception  (of  a  private  nature  at  least)  which 
is  not  contained  in  the  contract  itself,  can  be  engrafted  upon 
it  by  implication,  as  an  excuse  for  its  non-performance.4 
The  declaration,  in  an  action  on  a  contract  of  affreightment, 
stated  that  the  plaintiff  had  shipped  on  board  the  defendant's 
ship,  then  in  the  Bay  of  Gibraltar,  and  bound  for  London, 
certain  goods  to  be  safely  conveyed  to  London,  the  act  of 
God,  the  queen's  enemies,  fire,  all  and  every  other  dan- 
gers and  accidents  of  the  seas,  rivers,  and  navigation,  of 
whatever  nature  or  kind  soever,  save  risk  of  boats,  excepted ; 
the  breach  stated,  was  that  the  defendant  failed  so  to  convey 
and  deliver  the  goods  agreeably  to  his  undertaking ;  and  the 
plea  was,  that  the  ship,  in  the  course  of  her  voyage;  called 
at  Cadiz  (agreeably  to  the  terms  of  the  contract)  and  was 
then  within  the  jurisdiction  of  the  officers  of  customs  there, 
and  of  a  certain  Court  (described  in  the  plea)  ;  that  while 
the  ship  was  there,  the  goods  were,  according  to  the  law  of 
Spain,  lawfully  taken  out  of  the  ship  by  the  said  officers, 
against  the  will  and  without  the  default  of  the  defendant,  on 
a  charge  of  suspicion  of  their  being  contraband  according  to 
the  law  of  Spain,  and  were  confiscated  by  a  decree  of  the 
said  Court.  It  was  held,  on  demurrer,  that  the  plea  alleged 

1  Fairchild  v.  Slocum,  19  Wend.  (N.  Y.)  R.  329. 

2  See  ante,  §  175-180. 

3  May  v.  Babcock,  4  Ohio  R.  334. 

4  Per  Lord  Ellenborough,  in  Atkinson  v.  Ritchie,  10  East,  R.  533. 


CH.   VII.]  LIMITATION  BY  EXPRESS  CONTRACT.  235 

no  excuse  within  the  express  exceptions  in  the  contract ; 
that  the  decree  of  confiscation  was  in  itself  no  answer  ;  and 
that  it  did  not  appear  by  the  plea  to  have  been  incurred  by 
any  fault  in  the  plaintiff.  The  defendant's  contract  was,  in 
effect,  a  contract  of  insurance  against  all  but  certain  specified 
risks,  and  the  seizure  in  question  was  not  one  of  them.1 

§  227.  The  privilege  of  transshipment  in  a  bill  of  lading 
reserved  to  the  carrier  does  not  discharge  him  from  any 
responsibility  which  is  incident  to  his  contract,  until  the 
goods  be  delivered  at  their  destined  port.  A  stipulation,  for 
instance,  in  a  bill  of  lading,  that  the  shipper,  in  case  of  low 
water  in  the  river,  may  re-ship  in  other  craft,  does  not  vary 
his  obligation  to  deliver  safely.  Such  stipulation  is  for  the 
benefit  of  the  carrier,  in  securing  to  him  the  advantage  of  as 
great  a  portion  of  the  freight  as  he  could  earn,  and  to  throw 
upon  the  owner  any  increase  of  expense  ;  and  the  relation 
and  responsibility  of  a  common  carrier  continues  from  the 
shipment  of  the  goods  until  their  arrival  at  the  destined 
point  of  delivery.2  Where  the  undertaking  was  to  deliver 
a  cargo,  with  the  privilege  of  re-shipment  at  a  particular 
place  on  the  way,  and  the  undertaker  stopped  short  of  the 
point  designated,  and  the  cargo  was  lost  in  a  storm,  it  was 
held,  that  he  was  responsible.  As  the  storm  was  a  peril  of 
the  river,  and  an  act  of  God,  the  carrier  would  have  been 
excused  if  he  had  encountered  it  in  the  ordinary  course  of 
the  voyage,  and  of  his  duty,  but  as  it  was  encountered  when 
out  of  the  course  of  his  voyage  and  of  his  duty,  and  might 
have  been  avoided  but  for  a  disregard  of  his  duty  and  of 
his  contract,  the  carrier  made  himself  liable.3  By  the  inser- 
tion, therefore,  in  the  contract,  of  these  words  "  the  privilege 
of  re-s.hipping,"  although  the  carrier  is  allowed  to  transship 

1  Spence  v.  Chadwick,  10  Adol.  &  Ell.  R.  (N.  S.)  517. 

2  Whitesides  v.   Russell,  8  Watts  &   S.   (Penn.)  44 ;   M'Gregor  v. 
Kilgore,  6  Ohio  R.  143  ;  Dunseth  v.  Wade,  2  Scamm.  (111.)  R.  288. 

3  Cassilley  v.  Young,  4  B.  Mon.  (Ken.)  R.  265. 


236  LAW   OF  CARRIERS.  [CH.  VII. 

or  re-ship  in  another  vessel,  his  contract  is  not  performed 
until  the  delivery  of  the  goods  at  the  place  of  their  destina- 
tion.1 

§  288.  A  parol  agreement  between  the  master  of  a  vessel 
and  a  shipper  of  goods,  before  and  at  the  time  of  executing 
a  bill  of  lading,  permitting  the  master  to  deviate  from  the 
usual  route,  is  inadmissible  evidence  in  an  action  by  the 
shipper  against  the  owners  of  the  vessel,  to  recover  for  the 
loss  of  the  goods.  But  parol  evidence  of  the  custom  of 
navigating  Lake  Erie,  is  admissible,  though  not  for  the  pur- 
pose of  varying  a  written  contract,  but  for  the  purpose  of 
carrying  it  into  execution,  as  understood  by  the  parties.2 

§  229.  Evidence  is  not  admissible  to  vary  the  common 
form  of  a  bill  of  lading,  by  which  the  goods  were  to  be 
delivered  in  good  order  and  condition,  "  the  dangers  of  the 
seas  only  accepted,"  by  establishing  a  custom,  that  the 
owners  of  packet  vessels,  between  New  York  and  Boston, 
should  be  liable  only  for  damage  to  goods  occasioned  by 
their  own  neglect.3  Mr.  J.  Story,  in  giving  his  opinion  in 
this  case,  said  he  could  not  but  deem  every  relaxation  of 
the  Common  Law,  in  relation  to  the  duties  and  responsibili- 
ties of  the  owners  of  carrier  ships,  to  be  founded  in  bad 
policy,  and  detrimental  to  the  general  interests  of  commerce. 
In  respect  to  the  established  usage  set  up  in  the  case,  the 
learned  Judge  said :  —  "I  own  myself  no  friend  to  the 
almost  indiscriminate  habit,  of  late  years,  of  setting  up  par- 
ticular usages  or  customs  in  almost  all  kinds  of  business  or 
trade,  to  control,  vary,  or  annul  the  general  liabilities  of  par- 
ties under  the  Common  Law,  as  well  as  under  the  commer- 
cial law.  It  has  long  appeared  to  me,  that  there  is  no  small 


1  tittle  v.  Semple,  8  Missou.  R.  99  ;  and  see  ante,  §  95,  96,  97. 

2  May  v.  Babcock,  4  Ohio  R.  334. 

3  The  Schooner  Reeside,  2  Sumn.  (Cir,  Co.)  R.  567. 


CH.  VII.]  LIMITATION  BY  EXPRESS   CONTRACT.  237 

danger  in  admitting  such  loose  and  inconclusive  usages  and 
customs,  often  unknown  to  particular  parties,  and  always 
liable  to  great  misunderstandings  and  misinterpretations  and 
abuses,  to  outweigh  the  well  known  and  well  settled  prin- 
ciples of  law.  And  I  rejoice  to  find,  that,  of  late  years,  the 
Courts  of  law,  both  in  England  and  in  America,  have  been 
disposed  to  narrow  the  limits  of  the  operation  of  such  usages 
and  customs,  and  to  discountenance  any  further  extension 
of  them.  The  true  and  appropriate  office  of  a  usage  or 
custom  is,  to  interpret  the  otherwise  indeterminate  intentions 
of  parties,  and  to  ascertain  the  nature  and  extent  of  their 
contracts,  arising  not  from  express  stipulations,  but  from 
mere  implications  and  presumptions,  and  acts  of  a  doubtful 
or  equivocal  character.  It  may  also  be  admitted  to  ascertain 
the  true  meaning  of  a  particular  word,  or  of  particular  words 
in  a  given  instrument,  when  the  word  or  words  have  various 
senses,  some  common,  some  qualified,  and  some  technical, 
according  to  the  subject-matter,  to  which  they  are  applied. 
But  I  apprehend,  that  it  can  never  be  proper  to  resort  to 
any  usage  or  custom  to  control  or  vary  the  positive  stipula- 
tions in  a  written  contract,  and,  a  fortiori,  not  in  order  to 
contradict  them.  An  express  contract  of  the  parties  is 
always  admissible  to  supersede,  or  vary,  or  control,  a  usage 
or  custom ;  for  the  latter  may  always  be  waived  at  the  will 
of  the  parlies.  But  a  written  and  express  contract  cannot 
be  controlled  or  varied,  or  contradicted  by  a  usage  or 
custom  ;  for  that  would  not  only  be  to  admit  parol  evidence 
to  control,  vary,  or  contradict  written  contracts ;  but  it 
would  be  to  allow  mere  presumptions  and  implications, 
properly  arising  in  the  absence  of  any  positive  express- 
ions of  intention,  to  control,  vary,  or  contradict  the  most 
formal  and  deliberate  written  declarations  of  the  parties. 
Now,  what  is  the  object  of  the  present  asserted  usage  or 
custom  ?  It  is  to  show,  that,  notwithstanding  there  is  a 
written  contract,  (the  bill  of  lading,)  by  which  the  owners 
have  agreed  to  deliver  the  goods,  shipped  in  good  order  and 
condition,  at  Boston,  the  danger  of  the  seas  only  excepted; 


238  LAW   OF   CARRIERS.  [CH.  VIT. 

yet  the  owners  are  not  to  be  held  bound  to  deliver  them  in 
good  order  and  condition,  although  the  danger  of  the  seas 
has  not  caused  or  occasioned  their  being  in  bad  condition, 
but  causes  wholly  foreign  to  such  a  peril.  In  short,  the 
object  is,  to  substitute  for  the  express  terms  of  the  bill  of 
lading  an  implied  agreement  on  the  part  of  the  owners,  that 
they  shall  not  be  bound  to  deliver  the  goods  in  good  order 
and  condition  ;  but  that  they  shall  be  liable  only  for  damage 
done  to  the  goods  occasioned  by  their  own  neglect.  It  ap- 
pears to  me  that  this  is  to  supersede  the  positive  agreement 
of  the  parties,  and  not  to  construe  it." 

§  230.  In  a  case  in  the  Court  of  Appeals  of  South  Caro- 
lina, in  1817,  in  which  the  action  was  to  recover  damages 
for  the  loss  of  a  large  number  of  bales  of  cotton  that  were 
consumed  by  fire  on  the  defendants'  steamboat,  one  of  the 
legal  propositions  of  the  appellant  was,  that  the  ship-owners 
were  exempt  from  liability  at  Common  Law  for  the  acci- 
dental loss  by  fire  by  reason  of  the  usage  of  the  carriers  in 
the  particular  trade,  exempting  them  from  such  Common 
Law  liability.  The  Court  held,  that  a  custom  or  usage  in- 
tended, as  in  this  case,  to  alter  established  rules  of  law, 
must  be  of  very  long  standing,  so  as  to  imply  the  general 
acquiescence  of  all  parties  ;  whereas  the  custom  or  usage  in 
question  of  exemption  from  losses  by  fire,  was  not  only  of 
very  recent  origin,  but  had,  in  that  State,  been  continually 
resisted.1 

§  231.  But  between  the  shipper  and  the  ship-owner  the 

1  Singleton  v.  Hilliard  &  Brooks,  1  Strobhart,  (S.  C.)  R.  203,  the 
Court  referring  to  Patton  v.  Magrath,  Dud.  (S.  C.)  R.  163,  and  Swindler's 
case,  2  Rich.  (S.  C.)  R.  286.  See  also  Turner  v.  Wilson,  7  Yerg.  (Tenn.) 
R.  380.  It  is  the  doctrine  in  Ohio,  that  in  bills  of  lading,  where  the  terms 
used,  have,  by  usage,  acquired  a  particular  signification,  the  parties  will  be 
presumed  to  have  used  them  in  that  sense.  But  usage  will  not  be  per- 
mitted to  control  the  terms  used,  unless  it  is  established  by  clear  and  satis- 
factory proof.  Wayne  v.  Steamboat  Gen.  Pike,  16  Ohio  R.  421. 


CH.  VII.]  LIMITATION  BY  EXPRESS  CONTRACT.  .  239 

bill  of  lading  is  not  conclusive  as  to  the  quantity  of  mer- 
chandise shipped  on  board  ;  as  in  the  case  of  a  bill  of  lading 
signed  by  the  master  for  eight  hundred  and  ninety  bags  of 
pepper,  and  the  declaration  alleged,  that  that  number  were 
shipped,  and  that  some  of  them  had  been  lost ;  but  the  de- 
fence was,  that  only  seven  hundred  and  ninety  bags  were, 
in  fact,  shipped,  and  that  the  captain  had  been  induced  to 
sign  the  bill  of  lading  for  the  greater  number  by  the  fraud 
of  the  plaintiff's  agent ;  Chief  Justice  Tindal  said,  he  was 
of  opinion,  that,  as  between  the  original  parties,  the  bill  of 
lading  was  merely  a  receipt,  liable  to  be  opened  by  evidence 
of  the  real  facts,  and  left  the  question  to  the  jury,  whether, 
in  fact,  the  greater  or  the  lesser  number  of  bags  were  ship- 
ped.1 So  the  carrier  may  be  permitted  to  give  evidence  in 
contradiction  to  his  bill  of  lading,  that  the  goods  were  [de- 
livered to  him  in  good  order,  if  it  be  clearly  proved,  that  a 
fraud  or  imposition  was  practised  upon  him.2  But  this  rule 
does  not  apply  to  third  persons,  and  if  a  third  person  is 
induced  to  become  an  indorsee  of  a  bill  of  lading,  for  the 
value  of  it,  the  ship-owner  cannot,  as  against  such  indorsee, 
dispute  what  the  master,  by  his  signature,  has  affirmed.3 
The  master,  therefore,  should  be  careful  not  to  sign  bills  of 
lading,  until  the  goods  are  actually  delivered  to  him,  nor  to 
permit  the  insertion  of  statements  at  variance  with  the  facts  ; 
as  by  so  doing,  he  may  bind  his  owners,  and  become  him- 
self responsible  to  them.4 


1  Bates  v.  Todd,  1  Moo.  &  Rob.  R.  186  ;  and  see  Berkely  v.  Watling, 
7  Adol.  &  Ell.  R.  29.  Where  a  bill  of  lading  is  signed  and  delivered 
before  the  goods  are  shipped,  or  even  purchased,  it  will  cover  any  goods 
afterwards  shipped  as  and  for  those  named  in  the  bill  of  lading.  Rowley 
v.  Bigelow,  13  Pick.  (Mass.)  R.  307. 

8  Warden  v.  Green,  6  Watts,  (Penn.)  R.  424. 

3  Howard  v.  Tucker,  1  B.  &  Adol.  R.  512. 

4  Abbott  on  Shipp.  Pt.  4,  ch.  4.     A  bill  of  lading,  signed  by  the  mas- 
ter, for  goods  delivered  on  board  his  vessel  for  transportation,  is  the  con- 
tract of  the  owner  of  the  vessel.     Ferguson  v.  Chappeau,  6  H.  &  Johns. 
(Md.)  R.  394. 


240    .  LAW  OF  CARRIERS.  [CH.  VII. 

§  232.  But  there  never  have  been  many  questions,  and 
but  few  comparatively  are  likely  to  arise,  upon  the  interpre- 
tation of  positive  or  express  contracts  entered  into  for  the 
transportation  of  goods.  Many  of  the  questions  which  have 
of  late  years,  in  England,  engaged  the  attention  of  Courts, 
have  been  upon  implied  contracts,  or  upon  the  validity, 
obligation,  and  effect  of  the  written  or  printed  NOTICES  given 
by  common  carriers  in  the  course  of  their  public  employ- 
ment, and  posted  up  and  distributed,  which  announced, 
that  the  carrier  would  not  be  accountable  for  property  of 
more  than  a  specified  value,  unless  the  owner  had  insured 
and  paid  an  additional  premium  for  it.  This  practice  in 
England  grew  out  of  the  advancement  of  commerce,  the 
increase  of  personal  property,  and  the  consequent  frequency 
with  which  articles  of  great  value  and  small  bulk  were 
transmitted  from  one  place  to  another.  Carriers  thinking  it 
reasonable,  began  to  insist,  that  their  employers  should,  in 
such  cases,  pay  a  rate  of  remuneration  proportionable  to  the 
risk  undertaken,  and  they  did  so  by  the  means  just  men- 
tioned.1 But  however  long  continued  may  have  been  the 
practice  of  giving  such  notices,  their  legal  validity  was  not 
fully  established,  until,  at  least,  as  late  a  period  as  the  year 
1785.  For  this  we  have  the  authority  of  Mr.  Justice  Bur- 
rough,  who,  in  Smith  v.  Home,2  said,  "  the  doctrine  of 
notice  was  not  known  until  the  case  of  Forward  v.  Pittard,3 
which  I  argued  many  years  ago."  That  case  was  decided 
in  the  year  just  mentioned,  and  it  is  remarkable,  that  if  the 
question  of  notice  was,  in  any  form,  before  the  Court,  it 
should  not  have  been  mentioned  by  the  reporter ;  and  the 
decision  was  against  the  carrier,  although  the  loss  was  oc- 
casioned by  fire,  without  his  default.  The  doctrine  was  not 
recognized  in  Westminster  Hall  until  the  year  1804,  when 


1  See  note  to  Coggs  v.  Bernard,  1  Smith,  Lead.  Ca.  225. 

2  Smith  v.  Home,  8  Taunt.  R.  144. 

3  Forward  v.  Pittard,  1  T.  R.  27. 


CH.  VH.]     LIMITATION   OP  RESPONSIBILITY  BY  NOTICES.         241 

the  case  of  Nicholson  v.  Willan1  was  decided,  in  which 
Lord  Ellenborough  said  "  the  practice  of  making  a  special 
acceptance  had  prevailed  for  a  long  time,  and  that  there  was 
no  case  to  be  met  with  in  the  books,  in  which  the  right  of 
the  carrier  thus  to  limit,  by  special  contract,  his  own  respon- 
sibility, has  ever  been  by  express  decision  denied."  But 
whatever  may  have  been  the  rule  where  there  was  an  ex- 
press contract,  or  in  other  words,  a  special  contract  in  fact, 
the  learned  Judge  could  not  have  intended  to  say  that  a 
carrier  had  for  a  long  time  been  allowed  to  limit  his  liability 
by  a  general  notice,  or  that  a  special  contract  had  been  im- 
plied from  such  a  notice.  Not  longer  before  than  the  year 
1793,  Lord  Kenyon,  in  considering  obligations  created  by 
operation  of  law,  and  those  created  by  a  party's  oivn  act,  he 
puts  the  case  of  common  carriers,  and  said,  they  could  not 
discharge  themselves  by  any  act  of  their  own,  "  as  by  giving 
notice,  for  example,  to  that  effect."  2 

§  233.  The  validity  of  these  notices  gradually  became, 
however,  firmly  established  in  England  ;  and  although  many 
learned  Judges  have  expressed  a  regret,  that  they  were  ever 
recognized  in  Westminster  Hall,3  yet  Chief  Justice  Best,  in 
Riley  v.  Home,  appears  to  think  them  proper.  After  ad- 
verting to  the  fact,  that  the  Common  Law  makes  a  common 
carrier  liable,  for  every  loss  except  by  the  act  of  God  and 
the  king's  enemies,  that  learned  Judge  proceeded  to  say  : 
"  As  the  law  makes  the  carrier  an  insurer %  and  as  the  goods 
he  carries  may  be  injured  or  destroyed  by  many  accidents, 
against  which  no  care  on  the  part  of  the  carrier  can  protect 
them,  he  is  as  much  entitled  to  be  paid  a  premium  for  his 
insurance  of  their  delivery  at  their  place  of  destination,  as 
for  the  labor  and  expense  of  carrying  them  there.  Indeed, 


1  Nicholson  v.  Willan,  5  East,  R.  507. 

2  Hyde  v.  Proprietors  of  Trent  and  Mersey  Navigation,  1  Esp.  R.  36. 

3  See  a  review  of  the  English  cases  in  Hollister  v.  Nowlen,  Appx.  p. 
xviii ;  and  in  Cole  v.  Goodwin,  Appx.  p.  xxxiii. 

21 


242  LAW  OF  CARRIERS.  [CH.  VII. 

besides  the  risk  that  he  runs,  his  attention  becomes  more 
anxious,  and  his  journey  more  expensive,  in  proportion  to 
the  value  of  his  load.  If  he  has  things  of  great  value  con- 
tained in  such  small  packages,  as  to  be  the  objects  of  theft 
or  embezzlement,  a  strong  and  more  vigilant  guard  is  re- 
quired, than  when  he  carries  articles  not  easily  removed, 
and  which  offer  less  temptations  to  dishonesty.  He  must 
take  what  is  offered  to  him,  to  carry  to  the  place  to  which 
he  undertakes  to  convey  goods,  if  he  has  room  for  it  in  his 
carriage.  The  loss  of  one  single  package  might  ruin  him.  By 
means  of  negotiable  bills,  immense  value  is  now  compressed 
into  a  very  small  compass.  Parcels  containing  these  bills  are 
continually  sent  by  common  carriers.  As  the  law  compels 
carriers  to  undertake  for  the  security  of  what  they  carry,  it 
would  be  most  unjust,  if  it  did  not  afford  them  the  means  of 
knowing  the  extent  of  their  risk.  Other  insurers,  whether 
they  divide  the  risk,  which  they  generally  do,  amongst  sev- 
eral different  persons,  or  one  insurer  undertakes  for  the  in- 
surance of  the  whole,  always  have  the  amount  of  what  they 
are  to  answer  for  specified  in  the  policy  of  insurance." 1 

§  234.  Notwithstanding  the  force  of  the  reasons  above  ad- 
vanced by  Mr.  J.  Best  in  favor  of  the  equity  of  the  rule, 
that  a  common  carrier  should  be  allowed  to  stipulate  by 


i  Riley  v.  Home,  5  Bing.  R.  217.  See  also  Walker  v.  Jackson,  10  M.  &. 
Welsh.  R.  161  ;  and  the  review  of  the  numerous  English  cases  in  Hollister 
v.  Nowlen,  and  Cole  v.  Goodwin,  ub.  sup.  In  Wyld  v.  Pickford,  8  M.  & 
Welsh.  R.  443,  the  defendants  gave  notice  to  the  plaintiff,  that  they  would 
not  be  liable  for  loss  or  damage  done  to  certain  goods  delivered  to  them  for 
the  purpose  of  carriage,  unless  the  same  were  insured  according  to  their 
value,  and  paid  for  at  the  time  of  delivery  ;  which  limitation,  said  Parke, 
B.,  who  delivered  the  judgment  of  the  Court,  "  it  is  competent  for  a  car- 
rier to  make,  because  being  entitled  by  Common  Law  to  insist  on  the  full 
price  of  carriage  being  paid  beforehand,  he  may,  if  such  price  be  not  paid, 
refuse  to  carry  upon  the  terms  imposed  by  the  Common  Law,  and  insist 
upon  his  own ;  and  if  the  proprietor  of  the  goods  still  chooses  that  they 
should  be  carried,  it  must  be  on  those  terms." 


CH.  VII.]     LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.       243 

a  general  notice,  that  they  will  not  be  responsible  for  any 
loss  beyond  a  certain  sum,  unless  the  goods  were  spe- 
cially entered  and  paid  for ;  yet  the  subject  has  proved  as 
fruitful  a  source  of  legal  controversy,  as  the  subject  of  an 
acknowledgment  of  debt,  or  a  new  implied  promise,  under 
the  statute  of  limitations ;  and  the  policy  of  the  law  has 
been  defeated  as  much  by  extravagant  equitable  construc- 
tions in  respect  to  the  former  subject,  as  in  respect  to  the 
latter.  The  reader  has  only  to  refer  to  the  cases  of  Hollister 
v.  Nowlen,  and  Cole  v.  Goodwin,  at  the  end  of  the  volume, 
to  be  willing  to  admit  the  truth  of  this  assertion  ;  and  Mr. 
Bell,  in  his  Commentaries,  adduces  evidence  of  the  truth  of 
it :  "  Of  the  extravagance,"  he  says,  "  into  which  this  doc- 
trine has  run,  and  the  distracting  points  which  come  to  be 
involved  in  it,  the  newspapers  and  the  books  of  reports  are 
full.  One  carrier  frees  himself  from  responsibility  for  fire  ;  1 
another  even  from  the  common  responsibility  of  the  contract, 
for  negligence.2  One  man  is  bound  by  a  notice,  which  has 
appeared  in  a  newspaper  that  he  is  accustomed  to  read ; 3 
another  person,  because  a  large  board  was  stuck  up  in  his 
office ;  4  and  another  is  freed  from  the  effect  of  the  notice 
in  the  office,  because  hand-bills  were  circulated  of  a  different 
import.5  Then,  it  is  said,  what  if  he  cannot  read  ?  or  if  he 
does  not  go  himself,  but  sends  a  porter,  and  he  cannot  read  ? 
Or,  what  if  he  be  blitid,  and  cannot  see  the  placard  ?  And 
thus  difficulties  multiply ;  the  Courts  are  filled  with  ques- 
tions, and  the  public  left  in  uncertainty." 6  The  same  learned 
writer  also  says  :  "  The  unhappy  consequences  of  this  doc- 
trine are  to  be  ascribed,  as  it  would  seem,  to  a  wrong  bias 
unfortunately  admitted  in  the  progress  of  its  establishment, 


i  Maving  ».  Todd,  1  Stark.  R.  79. 
*  Leeson  v.  Holt,  1  Stark.  R.  186. 

3  Ibid. 

4  Clerk  v.  Grey,  4  Esp.  R.  177. 

5  Cobden  v.  Bolton,  2  Campb.  R.  108. 

6  1  Bell,  Comm.  382. 


244  LAW  OF   CARRIERS.  [CH.  VH. 

from  not  keeping  a  steady  eye  upon  the  principles  which 
ought  to  have  regulated  the  practice  of  giving  notices. 
There  seems  to  be  only  one  point  to  which,  legitimately 
notices  of  carriers  could  be  admitted,  viz.  the  regulation  of 
the  consideration  for  risk.  Saving  always  the  power  of 
making  an  express  contract,  the  effect  of  a  mere  notice 
ought  justly  to  be  restricted  to  this  point :  as  to  which  alone 
it  is  competent  for  a  carrier  to  refuse  employment.  Had 
this  been  attended  to,  the  law  on  this  subject  would  have 
been  conformable  to  the  general  system  of  jurisprudence, 
and  a  sort  of  legislative  power  never  would  have  been  assumed 
by  common  carriers.  Any  exorbitancy  of  charge  would  at 
once  have  been  brought  to  a  true  standard  by  judicial  deter- 
mination ;  while  the  responsibilities  of  the  carrier,  under 
the  Common  Law  of  his  contract,  and  on  the  principles  of 
of  public  policy,  would  have  remained  untouched  but  by  posi- 
tive agreement  in  each  individual."  l 

§  235.  It  is  generally  admitted,  in  respect  to  the  subject 
of  notices,  first,  that  a  carrier's  general  run  of  goods  may  be 
estimated,  and  notice  given,  that  he  will  not  be  answerable 
for  those  of  a  different  description,  as  jewelry,  money,  &c. 
of  extraordinary  value ;  secondly,  that  for  the  greater  risk 
attending  goods  of  such  a  description,  and  the  greater  care 
required,  a  higher  consideration,  partly  as  hire,  and  partly 
as  insurance,  should  be  given.  The  English  decisions,  for 
the  most  part,  have  gone  only  to  this  extent ;  and  although 
none  of  them  were  made  at  the  time  of  the  American  Revo- 
lution, yet  to  deny  that  they  are  not  to  enter  into  and  form 
a  part  of  our  own  law,  limited  as  above  mentioned,  would 
be,  according  to  the  opinion,  and  in  the  words  of  Mr.  J. 
Cowen,  "  to  rise  against  the  united  authority  of  Westminster 
Hall  both  before  and  since  the  Revolution."  2  But  there  have 


1  1  Bell,  Coram.  382. 

2  Cole  v.  Goodwin,  Appx.  p.  xxxiii. ;  2  Kent,  Comm.  606,  607. 


CH.  Vn.]      LIMITATION  OF  RESPONSIBILITY  BY  NOTICES.        245 

been  some  decisions  in  England,  which  go  to  a  much  greater 
extent  than  this,  and  so  far,  as  to  permit  a  common  carrier, 
without  an  express  contract,  and  at  his  own  discretion,  by  a 
mere  general  notice,  to  put  an  absolute  limit  on  the  public 
duty  and  responsibility  which  are  imposed  upon  him  by 
public  policy  ;  and  this  is  the  important  subject  of  attention. 
As  was  asserted  by  an  English  writer  more  than  thirty 
years  ago :  "  The  lawyer's  discrimination  and  judgment 
must  be  chiefly  directed  to,  and  conversant  with,  the  effect 
of  these  undertakings  by  which  common  carriers  have  al- 
most entirely  divested  themselves  of  the  character  of  public 
servants,  and  have  endeavored  to  assume  the  privileges  of 
special  contractors ;  in  direct  violation  of  the  policy,  and  in 
opposition  to  the  first  principles  of  the  Common  Law."  1 

§  236.  There  are  two  nisi  prius  decisions  in  England, 
which  allow  the  carrier  to  cast  off  all  liability  whatever. 
In  Maving  v.  Todd,2  the  defendant  had  given  notice,  that 
he  would  not  answer  for  a  loss  by  fire,  and  such  a  loss 
having  occurred,  Lord  Ellenborough  thought  that  carriers 
might  exclude  their  liability  altogether,  and  nonsuited  the 
plaintiff.  In  Leeson  v.  Holt,3  tried  in  1816,  the  same  learned 
Judge  made  a  like  decision  ;  though  he  remarked,  that  "  if 
this  action  had  been  brought  twenty  years  ago,  the  defend- 
ant would  have  been  liable ;  since  by  the  Common  Law  a 
carrier  is  liable  in  all  cases  except  two."  Here  is  a  very 
distinct  admission  of  what  will  be  found  in  many  of  the 
English  cases,  that  the  Courts  had  departed  from  the  law  of 
the  land. 

§  237.  Now,  admitting  the  carrier's  right  so  to  restrict  his 
responsibility  as  not  to  be  liable  for  a  loss  by  fire,  happening 


1  Jeremy  on  Carr.  3. 

2  Maving  v.  Todd,  1  Stark.  R.  72. 

3  Leeson  v.  Holt,  1  Stark.  R.  186. 

21* 


246  LAW  OP  CARRIERS.  [CH.  VH. 

otherwise  than  by  lightning,  by  an  express  contract  entered 
into  by  the  parties,  it  by  no  means  follows,  he  can  do  so 
merely  by  his  own  act ;  or,  that  it  may  be  inferred  from  a 
mere  general  notice  to  the  public,  (though  brought  home  to 
the  knowledge  of  the  other  party,)  limiting  his  obligation, 
which  may  or  may  not  be  assented  to.1  The  law,  as  laid 
down  by  the  Court  in  Hollister  v.  Nowlen,  in  New  York, 
and  confirmed  by  the  Supreme  Court  of  the  United  States, 
in  the  late  case  of  The  New  Jersey  Steam  Navigation  Com- 
pany v.  Merchants  Bank,2  is,  that  if  any  implication  is  in- 
dulged in,  from  the  delivery  of  the  goods  to  the  carrier, 
under  the  general  notice,  it  is  as  strong  that  the  owner 
intended  to  insist  upon  his  rights,  and  the  carrier's  duties, 
as  it  is,  that  he  assented  to  their  qualification.  The  carrier 
is  in  the  exercise,  of  a  public  duty,  a  sort  of  public  office, 
and  has  public  duties  to  perform,  from  which  he  should  not 
be  permitted  to  exonerate  himself  without  the  assent  of  the 
parties  concerned.  The  owner  of  the  goods,  by  entering 
into  an  express  contract,  virtually  agrees,  that,  in  respect  to 
the  particular  transaction,  the  carrier  is  not  to  be  regarded 
as  in  the  exercise  of  his  public  employment,  but  as  a  private 
person,  who  incurs  no  other  responsibility  than  that  of  an 
ordinary  bailee  for  hire.3  This  view  of  the  subject  is,  in 
this  country,  well  sustained  by  authority. 

§  238.  The  point  which  was  expressly  decided,  upon 
great  deliberation,  in  Hollister  v.  Nowlen,  in  New  York,  at 
the  May  Term  of  the  Supreme  Court,  1838,4  was,  that  stage- 
coach proprietors,  and  other  common  carriers,  could  not 
restrict  their  Common  Law  liability  by  a  general  notice,  that 


1  Jeremy  on  Carr.  35,  36;  Hollister  v.  Nowlen,  Appx.  p.  xviii. ;  Cole 
».  Goodwin,  Appx.  p.  xxxiii. 

2  See  opinion  of  Nelson,  J.,  in  New  Jersey  Steam  Navigation  Company 
v.  Merchants  Bank,  Dec.  Term  Sup.  Co.  U.  S.  1847,  Appx.  p.  liv. 

3  Ante,  Chap.  III. 

4  Appx.  p.  xviii. 


CH.  VH.j     LIMITATION  OP  RESPONSIBILITY  BY  NOTICES.        247 

the  "  Baggage  of  Passengers  is  at  the  Risk  of  the  Own- 
ers." The  same  point  was  decided  at  the  same  term  of  the 
Court  in  Cole  v.  Goodwin,1  in  which  the  whole  doctrine  of 
notices  generally  is  elaborately  and  learnedly  discussed  by 
Mr.  Justice  Cowen,  and  in  which  the  English  decisions  upon 
the  subject  of  notices  in  general,  are  carefully  reviewed  by 
that  learned  Judge  ; 2  and  the  opinion  of  the  learned  Judge 
may  be  interpreted  as  going  even  to  the  extent,  that  a  com- 
mon carrier  cannot  exclude  his  Common  Law  liability  by 
an  express  contract,  as  will  appear  by  the  following  sec- 
tion. 

§  239.  The  decision  in  the  case  of  Gould  v.  Hill,  in  New 
York,  in  1842,3  is,  that  common  carriers  cannot  limit  their 
liability,  or  evade  the  consequences  of  a  breach  of  their 
legal  duties  as  such,  by  an  express  agreement.  And,  ac- 
cordingly, the  Court  decided,  that  where  common  carriers, 
on  receiving  goods  for  transportation,  gave  the  owner  a 
memorandum,  by  which  they  promised  to  forward  the  goods 
to  their  place  of  destination,  "  danger  of^re,  &c.  excepted," 
they  were  liable  for  a  loss  by  fire,  though  not  resulting  from 
negligence.  The  opinion  of  the  Court  was  delivered  by 


1  Appx.  p.  xxxiii. 

2  In  the  case  of  Camden  and  Amboy  Railroad  and  Transportation  Com- 
pany v.  Belknap,  21  Wend.  R.  354,  the  defendant  brought  an  action  on 
the  case  in  the  Court  below,  (the  Superior  Court  of  the  City  of  New 
York,)  against  the  company  as  common  carriers  for  the  loss  of  baggage. 
The  Chief  Justice  in  the  Court  below  charged  the  jury,  that  notice  limit- 
ing the  liability  of  the  defendants,  if  it  reached  the  plaintiff  or  came  to 
his  knowledge,  controlled  the  Common  Law.  •  But  in  error,  in  the  Su- 
preme Court  of  the  State,  Bronson,  J.,  in  delivering  the  opinion  of  the 
Court,  said:  —  "The  case  was  tried  before  we  had  formally  refused  to 
engraft  upon  our  code  the  modern  English  innovation  of  allowing  the 
carrier  to  limit  his  Common  Law  liability,  by  a  notice  brought  home  to  the 
employer."     In  Clark  v.  Faxton,  21  Wend.  R.  153,  it  was  held  the  same 
as  in  Hollister  v.  Nowlen,  and  Cole  v.  Goodwin. 

3  Gould  ».  Hill,  2  Hill,  (N.  Y.)  R.  623. 


LAW   OP   CARRIERS.  [CH.  VII. 

Cowen,  J.,  who  said,  he  should  do  little  more  than  refer  to 
the  case  of  Cole  v.  Goodwin,  and  the  reasons  for  such 
opinion  as  stated  in  that  case.  He  then  proceeded  to  say : 
"  It  was  to  the  effect,  that  I  could  no  more  regard  a  special 
acceptance  as  operating  to  take  from  the  duty  of  a  common 
carrier,  than  a  general  one.  I  collect  what  would  be  a 
contract  from  both  instances,  provided  it  be  lawful  for  the 
carrier  to  insist  on  it ;  and  such  is  the  construction  which 
has  been  given  to  both  by  all  the  Courts.  The  only  differ- 
ence lies  in  the  different  kinds  of  evidence  by  which  the 
contract  is  made  out.  When  the  jury  have  found,  that  the 
goods  were  delivered  with  intent  to  abide  the  terms  of  the 
general  notice,  I  understand  a  contract  to  be  as  effectually 
fastened  upon  the  bailor,  as  if  he  had  reduced  it  to  writing. 
Indeed,  the  contrary  construction  would,  I  think,  be  to  toler- 
ate a  fraud  on  the  part  of  the  bailor.  The  true  ground  for 
repudiating  the  general  notice,  is,  therefore,  its  being  against 
public  policy;  and  this  ground  goes  not  only  to  the  evi- 
dence —  the  mode  in  which  you  are  to  prove  the  assent  — 
but  to  the  contract  itself.  After  forbidding  the  carrier  to 
impose  it  under  the  form  of  a  general  notice,  therefore,  we 
cannot  consistently  allow  him  to  do  the  same  thing  in  the 
form  of  a  special  notice  or  receipt.  The  consequences  to  the 
public  would  be  the  same,  whether  we  allow  one  form  or 
the  other."  l 


1  The  reasoning  of  Chief  Justice  Gibson,  in  Atwood  v.  Reliance  Trans. 
Co.  9  Watts,  (Penn.)  R.  87,  was  much  to  the  same  effect,  though  the 
question  was  not  decided.  In  1849  it  was  considered  by  Bronson,  J.,  in 
giving  the  opinion  of  the  Court  of  Appeals  in  New  York,  still  a  debata- 
ble question,  whether  common  carriers  and  innkeepers  can  contract  for  a 
more  restricted  responsibility  than  the  law  imposes  upon  them.  Wells  ». 
Steam  Navigation  Co.,  2  Comst.  (N.  Y.)  R.  204.  Of  course  there  is  no 
room  to  doubt  that  other  bailees  may  contract  (private  carriers  for  exam- 
ple) for  a  more  restricted  responsibility  than  would  be  implied  against 
them  in  the  absence  of  a  special  contract :  and  so,  in  that  manner  they 
may  become  insurers  against  all  possible  hazards.  Ibid.  And  see  ante, 
§  59.  The  following  important  intelligence  appeared  in  the  Boston  Daily 


CH.  VII.]     LIMITATION  OP  RESPONSIBILITY  BY  NOTICES.        249 

§  240.  In  Ohio,  the  question  whether  a  common  carrier 
could  limit  his  Common  Law  responsibility  by  notice,  was 
first  brought  before  the  Supreme  Court  of  that  State  in  1840, 
on  a  special  verdict,  in  the  case  of  Jones  v.  Voorhees,1  and 
the  Court,  upon  great  deliberation,  held,  and  in  their  opinion 
delivered  by  Wood,  J.,  earnestly  insisted,  that  the  proprietors 
of  stage-coaches  cannot  limit  their  responsibility  as  common 
carriers,  by  actual  notice  to  a  traveller,  that  the  baggage  is 
at  "  his  own  risk." 

§  241.  The  doctrine,  as  above  established  in  New  York, 
and  in  Ohio,  is  defended  by  an  elaborate  opinion  of  the  Su- 
preme Court  of  Georgia,  which  was  delivered  by  Nisbet,  J., 
who  says  :  "  I  have  said  that  a  common  carrier  cannot  vary 
his  liability  as  it  existed  at  Common  Law  in  1776,  by  notice 
or  special  acceptance.  On  account  of  the  importance  of  this 
subject,  I  propose  to  give  it  a  more  minute  exposition.  This 
is  an  age  of  railroads,  steamboat  companies,  stage  compa- 
nies, locomotion  and  transportation.  It  is  an  era  of  stir  — 
men  and  goods  run  to  and  fro,  and  common  carriers  are 
multiplied.  The  convenience  of  the  people  and  safety  of 
property  depend  more  now,  I  apprehend,  upon  the  rules 
which  regulate  the  liability  of  these  public  ministers,  than 

Advertiser  about  the  first  of  October,  1850,  and  was  copied  from  the  New 
York  Express.  "  The  General  Terra  of  the  Court  of  Common  Pleas  has 
decided  that  a  common  carrier  has  a  right  to  make  a  special  contract  with 
those  sending  goods  by  him,  a  rule,  the  contrary  to  which  has  usually 
hitherto  been  held.  The  Merchants'  Mutual  Insurance  Company,  insured 
goods  for  a  party  at  the  west,  which  were  placed  on  board  a  barge  belong- 
ing to  the  Western  Transportation  Company,  and  burnt  at  the  great  fire  at 
Albany,  while  on  their  way.  The  lusurance  Company  paid  the  loss  and 
sued  the  Transportation  Company,  contending  they  were  bound  to  deliver 
the  goods  at  the  place  of  destination.  The  printed  receipts  of  the  Trans- 
portation Company  expressly  proved  that  they  will  not  be  liable  for  loss 
by  fire.  The  Court  holds  that  said  clause  is  good  and  valid,  and  gave 
judgment  for  the  Transportation  Company,  no  negligence  having  been 
shown  on  their  part." 

1  Jones  v.  Voorhees,  10  Ohio  R.  145. 


250  LAW  OF   CARRIERS.  [CH.  VTJ. 

at  any  other  period  of  the  world's  history.  Steam,  as  a 
transporting  power,  has  supplanted  almost  all  other  agen- 
cies, and  it  is  used  for  the  most  part  by  public  companies 
or  associations.  It  is  very  important  that  their  liability 
should  not  only  be  accurately  defined,  but  publicly  declared. 
Anterior  to  1776,  the  common  carrier  was  an  insurer  for  the 
delivery  of  goods  intrusted  to  him,  and  liable  for  losses  oc- 
casioned by  all  causes,  except  the  act  of  God  and  the  king's 
enemies,  and  without  the  power  to  limit  his  responsibility. 
That  this  was  the  law,  is  proven  by  the  numerous  authori- 
ties which  I  have  before  referred  to.  No  adjudication,  before 
that  time,  had  relaxed  its  stringent  but  salutary  severity." 
The  learned  Judge  referred  to  the  case  of  Forward  v.  Pit- 
tard,  in  1785,  as  the  first  case  in  which  the  doctrine  of 
notice  was  recognized,  according  to  Mr.  J.  Burrough,  in 
Smith  v.  Home,  and  to  the  case  of  Nicholson  v.  Williams, 
in  1804,1  when  it  was  finally  settled  by  judicial  decision  ; 
and,  referring  to  the  decisions  in  New  York  and  Ohio,  he 
further  observed  :  —  "  We  adhere  then  to  the  sound  principles 
of  the  Common  Law,  sustained  by  the  Courts  of  our  own 
Union,  and  hold  notices,  receipts,  and  contracts,  in  restriction 
of  the  liability  of  a  common  carrier,  as  known  and  enforced 
in  1776,  void,  because  they  contravene  the  policy  of  law."  2 

§  242.  In  Hale  v.  The  New  Jersey  Steam  Navigation 
Company,  in  Connecticut,3  it  was  held,  that  where  a  steam- 
boat was  in  the  business  of  transporting  goods  from  New 
York  to  Providence  ;  and  the  goods  were  lost  in  Long  Island 
Sound,  near  Huntingdon,  Long  Island  ;  the  contract  of  the 
parties  was  to  be  governed  by  the  law  of  New  York  ;  and 
that  by  the  law  of  New  York,  common  carriers,  could  not, 
by  a  public  notice,  restrict  the  liability  imposed  upon  them 
by  the  Common  Law. 

1  See  ante,  §  232. 

2  Fish,  &c.  v.  Ross,  2  Kell.  (Geo.)  R.  349. 

3  Hale  v.  New  Jersey  Steam  Navigation  Company,  15  Conn.  R.  539. 


CH.  VII.]     LIMITATION   OP  RESPONSIBILITY  BY  NOTICES.        251 

§  243.  The  doctrine  established  in  the  above  States,  that 
common  carriers  cannot  exclude  their  Common  Law  respon- 
sibility by  a  general  notice  to  that  effect,  or  by  a  notice  that 
the  property  is  at  the  "  risk  of  the  owners,"  was  recognized 
by  the  Court  in  Bennett  v.  Button,  in  New  Hampshire ; 1 
and  in  Massachusetts,  there  is  no  disposition  to  relax  the 
requisitions  of  the  doctrine  of  the  Common  Law,  as  applied 
to  common  carriers,  nor  to  give  countenance  to  ingenious 
devices,  by  which  its  provisions  may  be  evaded.2  There  is 
also  a  like  indisposition  to  favor  or  extend  the  indulgence  of 
notices  in  Maine.3  The  question  in  Prentiss  v.  Barney,  in 
Maryland,4  was  left  undecided.  In  Pennsylvania  there  are 
numerous  and  strong  dicta  against  the  expediency  of  allowing 
any  limitation  of  the  carrier's  liability.5  "  Notwithstanding," 
says  C.  J.  Gibson,  "  the  unfortunate  direction  given  to  the 
decisions  of  an  early  day,  it  is  still  almost  susceptible  of  a 
doubt,  whether  an  agreement  to  lessen  the  Common  Law 
measure  of  a  carrier's  responsibility,  like  an  agreement  to 
forego  a  fee-simple  tenant's  right  of  alienation,  or  a  mortga- 
gor's right  of  redemption,  is  not  void  by  the  policy  of  the 
law.  Though  (said  he)  it  is  perhaps  too  late  to  say,  that  a 
carrier  may  not  accept  his  charge  in  special  terms,  it  is  not 
too  late  to  say,  that  the  policy  which  dictated  the  rule  of  the 
Common  Law,  requires  that  exceptions  to  it  be  strictly  inter- 
preted, and  that  it  is  his  duty  to  bring  his  case  strictly  within 
them."  6 


1  Bennett  v.  Button,  10  N.  Hamp.  R.  487. 

2  Per  Hubbard,  J.,  in  Thomas  v.  Boston  and  Providence  Railroad  Cor- 
poration, 10  Met.  (Mass.)  R.  479. 

3  Per  Weston,  C.  J.,  in  Bean  v.  Green,  3  Fairf.  (Me.)  R.  422. 

4  Prentiss  v.  Barney,  4  H.  &  Johns.  (Md.)  R.  317. 

5  Beekman  v.  Shouse,  5  Rawle,  (Penn.)  R.  179;  Eagle  v.  White,  6 
Whart.  (Penn.)  R.  505. 

6  Atwood  v.  Reliance  Trans.  Co.  9  Watts,  (Penn.)  R.  87.     In  Bing- 
ham  v.  Rogers,  6*  Watts  &  S.  (Penn.)  R.  495,  it  seems  to  be  admitted 
rather  reluctantly,  on  the  authority  of  Beekman  v.  Shouse,  that  carriers 
by  land  may  by  special  contract  limit  their  responsibility,  though  in  the 


252  I<AW  OF  CARRIERS.  [CH.  VII. 

§  244.  Finally,  that  a  common  carrier  cannot  exempt 
himself  from  the  responsibility,  or  from  the  duties  which  the 
law  has  annexed  to  his  employment,  by  a  notice  published 
by  the  carrier,  was  very  lately  declared  by  the  Supreme 
Court  of  the  United  States,  in  the  case  of  the  New  Jersey 
Steam  Navigation  Company  v.  The  Merchants  Bank.1  The 
Court,  in  this  case,  gave  their  assent  to  the  law  as  laid  down 
by  the  Court  in  Hollister  v.  Nowlen,  in  New  York  ; 2  and 


Court  below,  the  jury  were  instructed  that  common  carriers  could  not,  by 
notice,  limit  their  liability  as  to  the  safety  of  the  property,  though  they 
might  by  notice,  brought  home  to  the  owner,  require  the  latter  to  state  the 
nature  or  value  of  the  property,  or  might  for  that  purpose  make  a  special 
acceptance  ;  but  they  could  not  by  notice  rid  themselves  of  the  duty  im- 
posed by  law  to  be  answerable  for  the  property,  unless  the  loss  accrue 
by  inevitable  accident. 

1  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  Dec. 
Term  of  Sap.  Co.  of  U.  States,  1847,  Appx.  p.  liv. 

2  Appx.  p.  xviii.     The  Courts  in  South  Carolina  appear  inclined  to  give 
effect  to  notices,  which  claim  to  exonerate  a  common  carrier  from  his  Com- 
mon Law  liability.    Ante,  §  159,  224.    In  the  case  of  Singleton  v.  Hilliard, 
&c.,  in  1847,  in  the  Court  of  Appeals  of  South  Carolina,  Strob.  (S.  C.) 
R.  203,  in  which  the  action  was  to  recover  damages  for  the  loss  of  a  large 
number  of  bales  of  cotton,  that  were  consumed  by  fire  on  the  defendants' 
steamboat,  the  general  legal  proposition  of  the  appellants  was,  that  the 
ship-owners,  Hilliard  &  Brooks,  were  exempt  from  their  liability  at  Com- 
mon Law,  for  the  accidental  loss  by  fire,  by  reason  of  the  express  notice, 
that  they  were  not  to  be  held  liable  for  such  losses  by  fire,  unless  upon 
payment  of  certain  specified  and  additional  freight.     The  notice  in  ques- 
tion, and  duly  signed  by  the  agent,  was  a  follows  :  —  "  Steamboat  notice. — 
The  proprietors  of  the  steamboat  line  plying  from  Camden  and  Columbia 
to  Charleston,  having  made  arrangements  with  the  Augusta  Insurance  and 
Banking  Company,  to  insure  all  cotton  shipped  by  their  boats  from  the 
above  places,  inform  their  friends  and  the  public  generally,  that  bills  of 
lading  for  cotton  will  be  given  by  the  agents  at  Camden  and  Columbia, 
free  of  all  risks,  both  from  fire,  and  the  navigation,  without  additional 
charge."     Richardson,  J.,  who  gave  the  opinion  of  the  Court,  in  refer- 
ence to  this  notice,  said  :  —  "  From  this  advertisement  in  a  Camden  paper, 
I  cannot  conceive  that  any  one  could  understand,  that  the  shipper  had- to 
pay  twelve  and  a  half  cents  on  each  bale,  in  order  to  render  the  owners  of 
the  steamboats  liable  for  losses  by  fire."     Another  fact  the  learned  Judge 
mentioned  as  worthy  of  notice,  which  was,  the  uncertainty  ef  a  knowledge 


CH.  VII.]     LIMITATION  OF  RESPONSIBILITY  BY  NOTICES.         253 

they  say  :  "  We  lay  out  of  the  case  the  notices  published  by 
the  respondents,  seeking  to  limit  their  responsibility  ;  be- 
cause the  carrier  cannot  in  this  way  exonerate  himself  from 
duties  which  the  law  has  annexed  to  his  employment." 
The  American  Reports,  therefore,  afford  additional  testi- 
mony of  the  truth  of  the  assertion  made  by  Burrough,  J., 
in  Duff  v.  Budd,1  viz.  that  "  carriers  are  constantly  endeav- 
oring to  narrow  their  responsibility,  and  to  creep  out  of  their 
duties ;  and  I  am  not  singular  in  thinking  that  their  endeav- 
ors ought  not  to  be  favored." 

§  245.  Thus,  in  the  words  of  an  eminent  legal  writer, 
"  the  right  of  a  common  carrier,  by  a  general  notice,  to 
limit,  restrict,  or  avoid  the  liability  devolved  on  him  by  the 
Common  Law,  on  the  most  salutary  grounds  of  public 
policy,  has  been  denied  in  American  Courts,  after  the  most 
elaborate  consideration."  2  At  the  same  time,  as  the  learned 
writer  above  referred  to  says,  "  it  is  now  well  settled,  that  a 
common  carrier  may  qualify  his  liability,  by  a  general  notice 
to  all  who  may  employ  him,  of  any  reasonable  requisition 
to  be  observed  on  their  part,  in  regard  to  the  manner  of 
delivery  and  entry  of  parcels,  and  the  information  to  be 
given  to  him  of  their  contents,  the  rates  of  freight,  and  the 
like  ;  as,  for  example,  that  he  will  not  be  responsible  for 
goods  above  the  value  of  a  certain  sum,  unless  they  are 
entered  as  such,  and  paid  for  accordingly."  3  Notwithstand- 

on  the  part  of  the  shippers  and  their  agents,  of  the  advertisement  in  ques- 
tion in  the  public  papers ;  and,  in  short,  the  Court  considered  the  case, 
"  that  of  a  man  shipping  his  cotton  on  a  steamboat,  paying  customary 
freight,  which  cotton  has  been  destroyed  in  the  boat  by  fire,  and  the  owner 
of  course  liable." 

1  Duffv.  Budd,  3  B.  &  Bing.  R.  177. 

2  2  Greenleaf,  Ev.  §  215. 

3  Ibid.,  Ante,  $  235,  Kent,  Comra.  606,  607;  Story  on  Bailm.  §  557. 
In  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  R.  115,  the  Court, 
by  Nelson,  J.,  say,  that  "  if  he  "  (the  carrier)  "has  given  genera]  notice, 
that  he  will  not  be  liable  over  a  certain  amount,  unless  the  value  is  made 
known  to  him  at  the  time  of  delivery,  and  a  premium  for  insurance  paid, 

22 


254  LAW   OF   CARRIERS.  [CH.  VII. 

ing  such  notice,  the  owner  of  the  goods  has  a  right  to  insist, 
that  the  carrier  shall  receive  the  goods  subject  to  all  the 
responsibilities  incident  to  his  employment.1 

§  246.  If  the  carrier  has  published  two  different  notices, 
each  of  which  is  before  the  public  at  the  time  of  the  car- 
riage, that  will  bind  him  which  is  least  beneficial  to  himself ; 
and  if,  at  the  time  of  the  carriage,  he  delivers  a  written 
notice  without  any  limitation  of  responsibility,  that  nullifies 
his  prior  notice  containing  a  limitation.2 

§  247.  In  all  cases  where  the  notice  cannot  be  brought 
home  to  the  person  interested  in  the  goods,  directly  or  con- 
structively, it  is  a  mere  nullity ;  and  the  burden  of  proof  is 
on  the  carrier  to  show,  that  the  person  with  whom  he  deals, 
is  fully  informed  of  the  terms  and  effect  of  the  notice.3 
When  the  notice  is  thus  brought  home,  in  the  absence  of  all 
contravening  circumstances,  it  is  deemed  proof  of  the  con- 
tract between  the  parties ;  and  is  then  to  be  construed  like 
every  other  written  contract ;  and,  so  far  as  the  exceptions 
extend,  they  convert  the  general  law  into  a  qualified  respon- 
sibility.4 

such  notice,  if  brought  home  to  the  knowledge  of  the  owner,  is  as  effec- 
tual in  qualifying  the  acceptance  of  the  goods,  as  a  special  agreement, 
and  the  owner,  at  his  peril,  must  disclose  the  value,  and  pay  the  premium  ; 
and  the  carrier,  in  such  case,  is  not  bound  to  make  the  inquiry."  The 
only  modification  which  the  Supreme  Court  of  Georgia  would  admit, 
of  the  rule  of  responsibility  of  a  common  carrier  at  Common  Law,  by  a 
general  notice,  is  as  above  stated  in  the  text.  Fish,  &c.  v.  Ross,  2  Kell. 
(Geo.)  R.  349.  See  also  the  modern  English  case  of  Wyld  v.  Pickford, 
8  M.  &  Welsh.  R.  442,  and  the  earlier  English  cases  referred  to  in  Hoi- 
lister  v.  Nowlen,  Appx.  p.  xviii.,  Cole  v.  Goodwin,  Appx.  p.  xxxiii.  And 
see  Ante,  §  234. 

1  See  Hollister  v.  Nowlen,  Appx.  p.  xviii. 

2  Munn  v.  Baker,  2  Stark.  R.  255  ;  Cobden  v.  Bolton,  2  Campb.  R. 
108. 

3  Story  on  Bailm.  §  560  ;  2  Greenl.  Ev.  $  216  ;  Hollister  v.  Nowlen, 
Appx.  xviii. ;  Brooke  v.  Pickwick,  4  Bing.  R.  218  ;  Beekman  v.  Shouse, 
5  Rawle,  (Penn.)  R.  189. 

*  Ibid. 


CH.  VII.]     LIMITATION  OF  RESPONSIBILITY  BY  NOTICES.        255 

§  248.  The  most  usual  evidence  to  show  that  the  plaintiff 
has  had  notice  of  the  defendant's  terms,  has  been  by  proof 
that  a  notice  was  put  up  in  the  office  where  the  goods  were 
received  and  entered  for  the  purpose  of  carriage,  in  so  con- 
spicuous a  situation,  that  it  must  (unless  he  were  guilty  of 
wilful  negligence)  have  attracted  the  attention  of  the  plaintiff 
or  his  agent ; 1  and  the  printed  conditions  of  a  line  of  public 
coaches  were  held  to  be  made  sufficiently  known  to  passen- 
gers, by  being  posted  up  at  the  place  where  they  book  their 
names.2  But  this  proof  fails  where  the  party  who  delivers 
the  goods  at  the  office  cannot  read ;  3  and  where  the  goods 
were  delivered  by  a  porter,  who  admitted,  that  he  had  fre- 
quently been  at  the  defendant's  office,  and  that  he  had  seen 
a  printed  board,  but  did  not  suppose  that  it  contained  any 
thing  material,  and  in  fact,  had  never  read  it,  it  was  held , 
that,  although  the  board  in  fact  contained  a  notice,  the  evi- 
dence of  notice  was  insufficient ;  and  that  it  was  incumbent 
on  a  party  who  wished  to  rid  himself  of  his  Common  Law 
responsibility,  to  give  effectual  notice.4  So  there  was  a 
failure  of  proof  where  the  notice,  at  the  office  at  Cheltenham, 
stated  the  advantage  of  carriage  by  the  particular  wagon, 
in  large  letters,  and  the  notice  of  non-responsibility,  in  small 
characters,5  although  at  the  terminus  of  the  carrier's  route, 
notice  was  given  at  the  office  by  means  of  a  board  inscribed 
with  large  letters.  So  also  where  goods  are  not  delivered  at 
the  office  where  the  notice  is  exhibited,  but  are  delivered 
into  a  cart  sent  round  to  receive  goods ; 6  or,  at  an  inter- 
mediate stage  between  the  two  places,  from  each  of  which 
the  carrier  conveys  goods  to  the  other,  if  there  be  no  notice 


*  2  Stark.  Ev.  338. 

2  Whitesell  v.  Crane,  8  Watts  &  S.  (Penn.)  R.  369. 

3  Davis  v.  Willan,  2  Stark.  R.  279. 

4  Kerr  v.  Willan,  2  Stark.  R.  53. 

5  Butler  u.  Hearne,  2  Campb.  R.  415. 

6  Clayton  v.  Hunt,  3  Campb.  R.  27. 


256  LAW  OP  CARRIERS.  [CH.  VII. 

at  the  place  of  delivery  ;  although  notices  are  suspended  at 
the  two  termini.1 

§  249.  Another  usual  mode  of  proof  of  notice,  is  by  evi- 
dence, that  the  notice  was  given  by  printed  cards,  or  by 
advertisements  in  the  public  newspapers ;  but  this  is  insuf- 
ficient, unless  it  be  proved  that  the  plaintiff  has  seen  such 
cards,  or  read  the  newspapers  ;  2  or  is  accustomed  to  read 
the  newspapers,  so  as  to  lay  a  foundation  for  presuming 
knowledge.3  If  the  carrier  relies  on  the  distribution  of 
printed  handbills,  he  must  show,  that  one  of  them  was 
actually  delivered  to  the  owner,  or  to  the  person  bringing 
the  goods  for  conveyance.4 

§  250.  It  was  said  by  Best,  J.,  in  Brooke  v.  Pickwick,5 
"  If  coach  proprietors  wish  honestly  to  limit  their  responsi- 
bility they  ought  to  announce  their  terms  to  every  individual 
who  applies  at  their  office,  and,  at  the  same  time,  place  in 
his  hands  a  printed  paper  specifying  the  precise  extent  of 
their  engagement.  If  they  omit  to  do  this,  they  attract 
customers,  under  the  confidence  inspired  by  the  extensive 
liability  which  the  Common  Law  imposes  upon  carriers, 
and  then  endeavor  to  elude  that  liability  by  some  limitation 
which  they  have  not  been  at  the  pains  to  make  known  to 
the  individual  who  has  trusted  them."  This  course  received 
the  full  approbation  of  the  Court,  by  Bronson,  J.,  in  Hollis- 


1  Grugen  v.  Jolly,  1  Holt's  Cas.  317. 

2  2  Stark.  Ev.  338  ;  Jenkins  v.  Blizard,  1  Stark.  R.  418;  Clayton  v. 
Hunt,  ub.  sup.  ;  Leeson  v.  Holt,  1  Stark.  R.  186. 

3  Ibid,  and  Rowley  v.  Home,  3  Bing.  R.  2  ;  Griffith  v.  Lee,  1  C.  & 
Payne,  R.  110. 

4  Palmer  v.  Grand  Junction   Railway  Company,  4  M.  &  Welsh.  R. 
749.     Parol  evidence  is  admissible  to  show  the  contents  of  a  handbill  put  up 
in  a  stage-office  four  years  before,  containing  a  notification  of  limited 
responsibility.     Whitesell  v.  Crane,  8  Watts  &  S.  (Penn.)  R.  369. 

5  Brooke  v.  Pickwick,  4  Bing.  R.  218. 


CH.  VII.]     LIMITATION  OF  RESPONSIBILITY  BY  NOTICES.        257 

ter  v.  Nowlen.1  The  usual  practice  of  railway  companies  in 
England,  in  respect  to  this  subject,  is,  upon  the  receipt  of  the 
goods,  to  deliver  a  ticket  explaining  the  terras  upon  which  the 
company  are  willing  to  accept  them.  Proof  of  the  delivery 
on  the  one  side,  and  the  acceptance  on  the  other,  of  such  a 
ticket,  is  sufficient  to  constitute  a  special  contract ;  but  if 
there  is  no  proof  of  the  production  and  delivery  of  the  ticket  to 
the  other  party,  the  ground  of  exemption  fails,  and  the  com- 
pany consequently  must  be  taken  to  stand  on  the  ordinary 
footing  of  carriers  at  Common  Law.2 

§  251.  A  notice  known  to  the  owner  of  the  goods,  binds 
him,  in  respect  to  all  his  agents,  who  send  goods  by  the 
same  carrier.3  And  on  the  other  hand,  a  notice  known  to 
the  porter,  messenger,  or  agent  of  the  owner  of  the  goods, 
is  notice  to  him,  notwithstanding  the  owner  is  personally 
ignorant  of  such  notice  ; 4  for  indeed,  the  maxim,  that  the 
principal  is  civilly  bound  by  the  acts  of  his  agents,  univer- 
sally prevails,  both  in  Courts  of  Law  and  Equity  ;  5  it  being 
taken  for  granted,  that  the  principal  knows  whatever  the 
agent  knows.6  But  a  knowledge  of  notice  by  a  postmaster, 
to  whom  a  trunk  is  delivered  by  the  plaintiffs  servant,  to 
be  by  him  delivered  to  a  stage-driver,  will  not  affect  the 
owner  of  the  trunk,  if  the  knowledge  has  not  been  com- 
municated to  him,  or  to  his  agent  or  servant,  by  the  post- 
master.7 

1  Appx.  p.  xviii. 

2  Waif.  Sum.  of  Laws  of  Railways,  308. 

3  Story  on  Bailm.  §  558 ;  Mayhew  v.  Eames,  3  B.  &  Cress.  R.  691  ; 
Having  v.  Todd,  1  Stark.  R.  72  ;  Clark  v.  Hutchins,  14  East.  R.  475. 

*  Ibid. ;  Bean  v.  Green,  3  Fairf.  (Me.)  B.  422  ;  Baldwin  v.  Collins, 
9  Rob.  (Louis.)  R.  468  ;  New  Jersey  Steam  Navigation  Company  v. 
Merchants  Bank,  Dec.  Term  Sup.  Co.  U.  States,  1847,  Appx.  p.  liv.; 
and  see  ante,  §  91,  98. 

5  As  per  Lord  Kenyon,  C.  J.,  in  Doe  v.  Martin,  4  T.  R.  66. 

6  As  per  Ashhurst,  J.,  in  Fitzherbert  v.  Mather,  1  T.  R.  16.    And  see 
also  Anderson  v.  Highland  Turn.  Co.  16  Johns.  (N.  Y.)  R.  88. 

7  Beanv.  Green,  3  Fairf.  (Me.)  R.  422. 

22* 


258  LAW  OF   CARRIERS.  [CH.  VII. 

§  252.  Where  several  persons  are  carriers  as  partners,  and 
publish  a  notice,  and  one  of  the  partners  afterwards  under- 
takes, without  any  communication  with,  or  knowledge  of, 
the  others,  to  carry  packages  for  a  particular  person  free  of 
expense,  it  seems,1  that  such  a  contract  is  not  binding  on 
the  partnership,  in  derogation  of  their  notice  ;  that  is,  if  such 
act  is  not  within  the  scope  of  his  authority,  or  is  done  by 
connivance  in  fraud  of  their  rights.2 

§  253.  Had  carriers,  by  a  general  consent,  adopted  one 
certain  approved  legal  form  of  notice,  to  qualify  their  respon- 
sibility in  extraordinary  cases,  few  rules  of  construction  of 
notices  would  have  been  necessary,  and  few  difficulties 
would  have  arisen  in  determining  when  the  circumstances  of 
any  case  came  within  the  general  rules  of  exception.  But 
as  carriers  have  in  general  adopted  each  a  peculiar  form  of 
notice,  the  cases  have  been  decided  in  reference  only  to,  and 
upon  a  construction  of,  such  particular  notices.  Hence,  it 
has  seldom  happened  in  England,  that  one  case  affords  a 
parallel  or  precedent  for  another,  which  arises  upon  a 
differently-worded  limitation.3  In  one  case,  where  the  terms 
of  the  contract  were,  that  "  cash,  plate,  jewels,  &c.  would 
not  be  accounted  for,  if  lost,  of  more  than  £5  value,  unless 
entered  as  such,  and  paid  for,"  the  carrier  was  not  held 
liable  for  any  loss  whatever,  in  case  the  goods  exceeded  the 
specified  value,  and  no  entry  or  payment  of  the  increased 
value  had  been  made.4  In  another  case,  where  the  terms 
of  the  notice  were,  that  "  no  more  than  £5  will  be  accounted 
for,  for  any  goods  or  parcels  delivered  at  this  office,  unless 


1  Story  on  Bailm.  §  559. 

2  Bignold  v.  Waterhouse,  1  M.  &  Sel.  R.  255 ;  Helsby  v.  Mears,  5  B. 
&  Cress.  R.  504. 

3  See  Jeremy  on  Carr.  45;  and  Hollister  «.  Nowlen,  Appx.  p.  xviii., 
and  Cole  v.  Goodwin,  Appx.  p.  xxxiii. ;  and  Ante,  §  234. 

4  Clay  v.  Willan,  1  H.  Bl.  R.  298 ;  and  see  Button  w.  Bolton,  there 
cited. 


OH.  Vn.]     LIMITATION   OF  RESPONSIBILITY  BY   NOTICES.       259 

entered  as  such,  and  paid  for  accordingly,"  the  plaintiff  was 
allowed  to  retain  his  verdict  for  £5,  as  a  limited  amount  of 
damages  recoverable  by  him  under  the  conditions  of  this 
contract.1 

§  254.  It  is  very  obvious,  as  has  been  truly  said,  that  "  it 
is  of  great  practical  importance,  to  carriers,  to  fix  the  terms 
of  their  notices  in  such  a  manner,  as  to  avoid  all  ambig\dty  ; 
as,  in  all  cases  of  doubt,  they  will  be  construed  unfavorably 
to  the  carrier."  2  Where  the  notice  of  a  stage  company 
related  solely  to  the  baggage  of  passengers,  it  was  contended, 
that  the  notice  extended  not  only  to  the  baggage,  but  in- 
cluded also  goods  and  merchandise  under  the  superintend- 
ence of  the  carrier,  but  the  Court  refused  to  accede  to  such  a 
construction  ;  and  they  said,  that  if  the  defendants  wished  to 
be  understood,  as  they  insisted,  it  was  certainly  not  unrea- 
sonable to  require  something  more  explicit,  and  less  liable  to 
ambiguity ',  than  what  the  notice  on  which  they  relied  con- 
tained.3 


1  Clarke  ».  Grey,  6  East,  R.  564. 

2  Jeremy  on  Carr.  47  ;  and  see  Story  on  Bailm.  §  556. 

3  Beekman  v.   Shouse,  5  Rawle,  (Penn.)   R.    179.     An   action  was 
brought  against  common  carriers,  being  the  proprietors  of  a  line  of  stage- 
coaches running  between  Baltimore  and  Philadelphia,  for  the  transporta- 
tion of  passengers  and  goods  and  merchandise  for  hire,  for  negligence  in 
not  delivering  a  case  of  sinshaws,  delivered  by  the  plaintiff  at  the  stage- 
office,  and  entered  on  the  way-bill  for  transportation.     The  defendant  had 
published  in  the  various  newspapers  printed  in  B.  (and  which  advertise- 
ment was  known  to  the  plaintiff)  the  time  when  the  stages  would  start 
from,  and  arrive  at,  the  respective  cities,  and  the  publication  contained 
also  these  clauses :    "  Fare  and  allowance  of  baggage  as  usual.     All 
baggage  at  the  risk  of  the  owners  thereof."     "  All  the  baggage  over 
twenty  pounds  will  hereafter  positively  be  charged,  and  be  at  the  risk  of 
the  owners  thereof."     It  was  held,  that  if  the  owners  of  stage-coaches, 
which  carry  not  only  passengers  and  their  baggage,  but  goods  which  the 
owner  does  not  accompany,  can  by  their  publications  exempt  themselves 
from  their  liability,  which  the  Court  did  not  mean  to  decide,  then  such 
publications  should,  in  that  respect,  be  plain  and  explicit.     That  in  this 


260  LAW  OP   CARRIERS.  [CH.  VII. 

§  255.  A  general  inclination  of  the  public  to  avoid  their 
subjection  to  extortion  by  the  power  allowed  to  carriers  of 
thus  fixing  the  additional  premium  on  valuable  goods,  and 
a  consequent  general  neglect  to  give  the  information  re- 
quired, carriers,  instead  of  being  what  they  originally  were 
intended,  proved  arbitrary  extortioners,  and  successful  evad- 
ers of  the  Common  Law  policy.  The  interests  of  commerce 
demanded  the  legal  enforcement  of  some  gradual  scale  of 
price,  proportionate  to  the  value  or  bulk  of  the  articles  ;  and 
thereby  control  the  power  which  carriers  had  assumed.1 
These  considerations,  together  with  that  of  the  difficulty  of 
proving  the  notice  to  have  come  to  the  knowledge  of  the 
other  party,  at  length  induced  the  English  Parliament  to 
interfere,  by  the  statute  11  Geo.  IV.  and  1  Wm.  IV.  c.  68  ; 
a  statute  which  has,  to  some  extent,  as  relates  to  carriers  by 
land,  restored  the  operation  of  the  Common  Law.2  By  thus 
substantially  re-asserting  the  rule  of  the  Common  Law,  it 
has  been  considered,  that  relief  has  been  afforded  both  to 
the  Courts  and  to  the  public  ;  and  that,  if  the  people  of  Great 
Britain,  "  after  a  long  course  of  legal  controversy,  have 
retraced  their  steps,  and  returned  to  the  simplicity  and  cer- 
tainty of  the  Common  Law  rule,  we  (in  this  country)  ought 
to  profit  by  their  experience."  3 

§  256.  The  statute  above  referred  to,  (the  adoption  of  the 
provisions  of  which  is  so  decidedly  recommended,)  is  entitled, 
"  An  Act  for  the  more  effectual  protection  of  mail  contractors, 
stage-coach  proprietors,  and  other  common  carriers  for  hire, 


case,  the  defendants'  advertisement  was  in  doubtful  and  ambiguous  lan- 
guage, and  that  they  were  as  responsible  for  the  loss  of  the  goods,  as  if 
no  advertisement  had  been  published  by  them.  Barney  v.  Prentiss,  4  H. 
&  Johns.  (Md.)  R.  317  ;  andDwight  v.  Brewster,  1  Pick.  (Mass.)  R.  50. 

1  Jeremy  on  Carr.  41. 

2  Story  on  Bailm.  §  554. 

3  Bronson,  J.,  in  giving  the  opinion  of  the  Court  in  Hollister  v.  Now- 
len,  Appx.  p.  xviii. 


CH.  Vn.j      LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.       261 

against  the  loss  of  or  injury  to  parcels  or  packages  delivered 
to  them  for  conveyance  or  custody,  the  value  and  contents 
of  which  shall  not  be  declared  to  them  by  the  owners  there- 
of." It  recites  that  "  by  reason  of  the  frequent  practice  of 
bankers  and  others  of  sending  by  the  public  mails,  stage- 
coaches, wagons,  vans,  and  other  public  conveyances  by 
land,  for  hire,  parcels  and  packages  containing  money,  bills, 
notes,  jewelry,  and  other  articles  of  great  value  in  small 
compass,  much  valuable  property  is  rendered  liable  to  de- 
predation, and  the  responsibility  of  mail  contractors,  stage- 
coach proprietors,  and  common  carriers  for  hire  is  greatly 
increased ;  and  that,  through  the  frequent  omission  by  per- 
sons sending  such  parcels  and  packages  to  notify  the  value 
and  nature  of  the  contents  thereof,  so  as  to  enable  such  mail 
contractors,  stage-coach  proprietors,  and  other  common  car- 
riers, by  due  diligence,  to  protect  themselves  against  losses 
arising  from  their  legal  responsibility,  and  the  difficulty  of 
fixing  parties  with  knowledges  of  notices,  published  by  such 
mail  contractors,  stage-coach  proprietors,  and  other  common 
carriers,  with  the  intent  to  limit  such  responsibility,  they 
have  become  exposed  to  great  and  unavoidable  risks,  and 
have  thereby  sustained  heavy  losses  ;  "  it  is  therefore  enacted 
in  section  1,  that  no  mail  contractor,  stage-coach  proprietor, 
or  other  common  carriers  by  land  for  hire,  shall  be  liable  for 
the  loss  of  or  inj  ury  to  any  article  or  property  of  the  descrip- 
tion following;  that  is  to  say,  gold  or  silver  coin  of  this 
realm  or  of  any  foreign  state,  or  any  gold  or  silver  in  a 
manufactured  or  unmanufactured  state,  or  any  precious 
stones,  jewelry,  watches,  clocks,  or  time-pieces  of  any  de- 
scription, trinkets,  bills,  notes  of  the  governor  and  company 
of  the  banks  of  England,  Scotland,  and  Ireland,  or  of  any 
other  bank  in  Great  Britain  or  Ireland,  orders,  notes,  or 
securities  for  payment  of  money,  English  or  foreign  stamps, 
maps,  writings,  title-deeds,  paintings,  engravings,  pictures, 
gold  or  silver  plate  or  plated  articles,  glass,  china,  silks 
in  a  manufactured  or  unmanufactured  state,  and  whether 
wrought  up  or  not  wrought  up  with  other  materials,  furs,  or 


262  LAW    OP    CARRIERS.  [CH.  VH. 

lace  ;  or  any  of  them,  contained  in  any  parcel  or  package 
which  shall  have  been  delivered,  either  to  be  carried  for  hire, 
or  to  accompany  the  person  of  any  passenger  in  any  mail  or 
stage-coach,  or  other  public  conveyance,  when  the  value  of 
such  article  or  articles  or  property  contained  in  such  parcel 
or  package  shall  exceed  the  sum  of  ten  pounds ;  unless  at 
the  time  of  the  delivery  thereof  at  the  office,  warehouse,  or 
receiving  house  of  such  mail  contractor,  coach  proprietor, 
or  other  common  carrier,  or  to  his,  her,  or  their  book-keeper, 
coachman,  or  other  servant,  for  the  purpose  of  being  carried, 
or  of  accompanying  the  person  of  any  passenger  as  afore- 
said, the  value  and  nature  of  such  article  or  articles,  or 
property,  shall  have  been  declared 1  by  the  person  sending  or 
delivering  the  same,  and  such  increased  charge  as  is  herein- 
after mentioned,  or  an  engagement  to  pay  the  same,  be 
accepted  by  the  person  receiving  such  parcel  or  package. 
The  second  section  enacts,  that  when  any  parcel  or  package 


1  The  following  alphabetical  list  of  the  above  articles  may  be  found  useful  : 

Bank  notes.     Bills  of  exchange.     Checks  on  bankers.     China. 

Clocks.     Coin  (gold  or  silver)  of  this  country,  of  a  foreign  state. 

Deeds.     Engravings.     Foreign  coins  (gold  or  silver.) 

Furs.     Glass. 

Gold  coin,  or  other  gold,  (manufactured  or  not,)  or  gold  plate,  or  plated 
articles. 

Jewelry.     Lace.     Maps. 

Money  (coins)  or  orders,  notes,  or  securities  for  payment  of  money. 

Notes  of  banks  of  England,  Scotland,  or  Ireland,  or  other  bank  in 
Great  Britain  or  Ireland,  or  notes  for  payment  of  money. 

Orders  for  payment  of  money. 

Paintings.     Pictures.     Plate  (gold  or  silver.) 

Plated  articles.     Precious  stones.     Promissory  notes. 

Securities  for  payment  of  money. 

Silks  in  a  manufactured  or  unmanufactured  state,  or  wrought  up,  or  not 
with  other  articles. 

Silver,  silver  coin,  or  silver  plate,  or  plated  articles. 

Stamps  (English  or  foreign.)     Stones  (precious.) 

Times-pieces  of  any  description. 

Title-deeds.    Trinkets.    Watches.    Writings. 


CH.  VH.]     LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.       263 

containing  any  of  the  said  articles  shall  be  so  delivered,  and 
its  value  and  contents  declared  as  aforesaid,  and  such  value 
shall  exceed  the  sum  of  ten  pounds,  it  shall  be  lawful  for 
such  mail  contractors,  stage-coach  proprietors,  and  other 
common  carriers,  to  demand  and  receive  an  increased  rate 
of  charge,  to  be  notified  by  some  notice  affixed  in  legible 
characters  in  some  public  and  conspicuous  part  of  the  office, 
warehouse,  or  other  receiving  house,  when  such  parcels  or 
packages  are  received  by  them  for  the  purpose  of  convey- 
ance, stating  the  increased  rates  of  charge  required  to  be 
paid,  over  and  above  the  ordinary  rate  of  carriage,  as  a 
compensation  for  the  greater  risk  and  care  to  be  taken  fof 
the  safe  conveyance  of  such  valuable  articles  ;  and  all  per- 
sons, sending  or  delivering  parcels  or  packages  containing 
such  valuable  articles  at  such  office,  shall  be  bound  by  such 
notice,  without  further  proof  of  the  same  having  come  to 
their  knowledge.  By  the  third  section,  when  the  value 
shall  have  been  so  declared,  and  the  increased  rate  of  charge 
paid,  or  an  engagement  to  pay  the  same  shall  have  been 
accepted,  the  person  receiving  such  increased  rate  of  charge, 
or  accepting  such  agreement,  shall,  if  thereto  required,  sign 
a  receipt  for  the  package  or  parcel,  acknowledging  the  same 
to  have  been  insured  (which  receipt  shall  not  be  liable  to 
any  stamp  duty)  ;  and  if  such  receipt  shall  not  be  given 
when  required,  or  such  notice  as  aforesaid  shall  not  have 
been  affixed,  the  mail  contractor,  stage-coach  proprietor,  or 
other  common  carrier,  as  aforesaid,  shall  not  be  entitled  to 
any  benefit  or  advantage  under  the  act ;  but  shall  be  liable 
as  at  the  Common  Law,  and  be  liable  to  refund  the  increased 
rate  of  charge.  The  fourth  section  provides,  that  no  public 
notice  or  declaration  shall  limit  or  in  anywise  affect  the  lia- 
bility at  Common  Law  of  any  of  such  mail  contractors, 
stage-coach  proprietors,  or  other  public  common  carriers,  for 
or  in  respect  of  any  goods  to  be  carried  and  conveyed  by 
them  ;  but  that  they  shall  be  liable  as  at  the  Common  Law, 
to  answer  for  the  loss  of,  or  injury  to,  any  articles  and  goods, 
in  respect  whereof  they  may  not  be  entitled  to  the  benefit  of 


264  LAW  OF   CARRIERS.  [CH.  VII. 

the  act,  any  public  notice  or  declaration  by  them  made  and 
given  contrary  thereto,  or  in  anywise  limiting  such  liability, 
notwithstanding.  Section  sixth  provides,  that  nothing  in  the 
act  contained  shall  extend  or  be  construed  to  annul  or  in 
anywise  affect  any  special  contract  between  such  mail  con- 
tractor, stage-coach  proprietor,  or  common  carrier,  and  any 
other  parties,  for  the  conveyance  of  goods.  By  the  seventh 
section,  it  is  enacted,  that  where  any  parcel  or  package  shall 
have  been  delivered  at  any  such  office,  and  the  value  and 
contents  declared,  and  the  increased  rate  of  charges  been 
paid,  and  such  parcel  or  package  shall  have  been  lost  or 
damaged,  the  party  entitled  to  recover  damages  in  respect 
thereof  shall  also  be  entitled  to  recover  back  such  increased 
charges  in  addition  to  the  value  of  such  parcel  or  package. 
The  eighth  section  provides,  that  nothing  in  the  act  shall 
protect  any  mail  contractor,  stage-coach  proprietor,  or  other 
common  carrier  for  hire,  from  liability  to  answer  for  loss 
or  injury  to  any  goods  or  articles  whatsoever,  arising  from 
the  felonious  acts  of  any  coachman,  guard,  book-keeper, 
porter,  or  other  servant,  in  his  employ,  nor  protect  any 
such  coachman,  guard,  book-keeper,  or  other  servant  from 
liability  for  any  loss  or  injury  occasioned  by  his  own  per- 
sonal neglect  or  misconduct.  By  the  ninth  section,  such 
mail  contractors,  stage-coach  proprietors,  or  other  common 
carriers  for  hire,  are  not  to  be  concluded  as  to  the  value 
of  any  such  parcel  or  package  by  the  value  so  declared  as 
aforesaid,  but  that  he  or  they  shall  in  all  cases  be  entitled  to 
require  from  the  plaintiff  proof  of  the  actual  value  of  the 
contents  by  the  ordinary  legal  evidence  ;  and  that  the  mail 
contractors,  stage-coach  proprietors,  or  other  common  car- 
riers as  aforesaid,  shall  be  liable  to  such  damages  only  as 
shall  be  so  proved  as  aforesaid,  not  exceeding  the  declared 
value,  together  with  the  increased  charges. 

§  257.  In  regard  to  the  general  effect  of  the  above  act, 
1st,  it  relates  solely  to  carriers  by  land  ;  2dly,  it  extends  to 
the  particular  articles  enumerated  only  in  case  their  aggre- 


CH.  VII.]     LIMITATION   OP  RESPONSIBILITY  BY  NOTICES.        265 

gate  value  exceeds  10/. ;  3dly,  that  it  exempts  the  carrier 
from  his  Common  Law  responsibility  as  to  such  goods  (unless 
the  loss  arise  from  the  felony  of  his  servants)  only  in  the 
event  of  his  affixing  a  public  and  conspicuous  notice  in  the 
receiving  office,  notifying  the  extra  charges  for  carrying  such 
valuable  articles,  or  in  the  event  of  a  special  contract ;  4thly, 
that  if  the  notice  be  affixed,  although  not  seen  by  the  con- 
signor or  owner,  the  carrier  is  not  responsible  as  to  the  enu- 
merated description  of  goods,  (if  the  loss  do  not  arise  from 
the  felony  of  his  servants,)  unless  the  value  and  nature  of  the 
goods  be  made  known,  and  the  increased  or  insurance  rate 
of  charge  for  carriage,  or  an  agreement  to  pay  it,  be  accepted 
by  the  carrier  ;  but  the  refusal  to  give  on  demand  a  receipt 
for  the  goods  and  extra  charge,  deprives  him  of  the  protec- 
tion of  the  act.  5thly,  That  as  to  all  goods  not  specifically 
mentioned  in  the  act,  and  as  to  goods  of  the  description 
therein  mentioned,  when  the  value  of  the  latter  is  not  above 
10/.,  the  Common  Law  liability  remains,  although  such  notice 
be  given,  or  any  public  notice  or  declaration  be  made  or 
given,  by  the  carrier  attempting  to  vary  such  liability ;  Gthiy, 
that  the  act  does  not  preclude  the  parties  from  entering  into 
a  special  contract  as  to  the  conveyance  of  goods  of  any  de- 
scription or  value  ;  and  under  the  act,  the  merely  giving  the 
public  notice,  though  known  to  the  consignor  or  owner  of  the 
goods,  cannot  be  deemed  to  constitute  a  special  contract  for 
this  purpose  ;  and  7thly,  it  seems,  that  if  the  loss  or  injury 
be  occasioned  by  the  personal  neglect  or  misconduct  of  the 
coachman,  guard,  book-keeper,  or  other  servant  of  the  car- 
rier, in  a  case  in  which  the  carrier  himself  is  not  responsible, 
such  coachman,  &c.  may  be  sued  by  the  owner  of  the  goods 
for  the  consequent  damage.1 


1  Chit,  on  Contr.  493.  For  an  analysis  of  this  statute,  by  Bronson,  J., 
see  A.ppx.  xxxi.  xxxii.  As  to  the  special  plea,  under  it,  in  Boys  v.  Pink, 
8  Carr.  &  Payne,  R.  561,  the  declaration  stated,  that  the  defendants  were 
common  carriers  of  goods  by  a  van  from  Bristol  to  London,  and  that  they 
so  being  such  carriers,  received  from  the  plaintiff  a  box  containing  certain 
23 


266  LAW   OF   CARRIERS.  [CH.  VIT. 

§  258.  In  further  considering  the  subject  of  notices,  it 
becomes  proper  to  consider  the  effect  of  misrepresentation, 
fraud,  and  concealment  of  the  owner  of  the  goods,  in  respect 
to  the  nature,  amount,  and  value  of  them.  It  is  plainly  the 
duty  of  every  person  sending  goods  by  a  common  carrier,  in 
the  absence  of  notice,  not  to  practise  such  imposition  and 


goods,  to  wit,  prints  and  colored  prints  to  be  safely  carried  by  the  defend- 
ants from  Bristol  to  London,  and  that  the  defendants,  not  regarding  their 
duty,  did  not  convey  the  goods  safely,  but,  on  the  contrary,  so  negligently 
conducted  themselves,  that  the  goods  were  spoiled.  Pleas  —  first,  Not 
guilty  ;  and  second,  a  special  flea. founded  on  the  statute:  "  And  for  further 
plea,  the  defendants  say,  that  the  said  prints  and  colored  prints  in  the  said 
declaration  mentioned,  at  the  time  of  the  said  delivery  thereof  to  the 
defendants,  were  engravings,  and  that  the  said  delivery  in  the  declaration 
mentioned,  of  the  said  box,  containing  the  said  goods  and  chattels,  was  a 
delivery  thereof  to  the  defendants  as  common  carriers  by  land  of  goods 
for  hire,  to  a  certain  servant  of  the  defendants,  and  at  a  certain  office  and 
receiving  house  of  the  defendants,  situate  at  Bristol  aforesaid,  and  that 
the  value  of  the  goods  and  chattels  contained  in  the  said  box,  at  the  time 
of  the  said  delivery  thereof  as  aforesaid,  exceeded  the  sum  of  ten  pounds, 
and  amounted,  to  wit,  to  the  said  sum  of  two  hundred  pounds,  in  the  said 
declaration  mentioned.  And  the  defendants  further  say,  that  at  the  time 
of  the  said  delivery  of  the  said  box  and  its  contents  as  aforesaid,  for  the 
purpose  of  their  being  carried  as  aforesaid,  the  value  and  nature  of  the 
said  goods  and  chattels  were  not  declared  by  the  plaintiff  or  the  person 
sending  or  delivering  the  same,  nor  was  such  increased  charge  as  is  here- 
inafter mentioned,  nor  any  engagement  to  pay  the  same,  accepted  by  the 
defendants,  or  either  of  them,  or  the  person  receiving  the  said  box  and  its 
contents  as  aforesaid  ;  and  the  defendants  further  say,  that  before  the  time 
when  the  said  box  and  its  contents  aforesaid  were  so  delivered  to,  and 
received  by,  the  defendants  as  such  carriers  as  aforesaid,  the  defendants 
had  caused  to  be  affixed,  in  the  said  office  and  receiving  house,  according 
to  the/orm  of  the  statute  in  such  case  made  and  provided,  in  legible  char- 
acters, in  a  public  and  conspicuous  part  of  the  said  office  and  receiving 
house,  a  notice,  whereby  they,  the  defendants,  stated  and  notified  that 
certain  increased  rates  of  charge,  therein  mentioned,  specified,  and  stated, 
were  required  to  be  paid,  over  and  above  the  ordinary  rate  of  carriage,  as 
a  compensation  for  the  greater  trouble  and  care  to  be  taken  for  the  safe 
conveyance  of  a  parcel  or  package  containing  engravings  of  a  value  ex- 
ceeding ten  pounds,  and  this  the  defendants  are  ready  to  verify." 


CH.  VII.]     LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.       267 

deception  upon  him  as  will  add  to  his  risk  and  lessen  his 
requisite  care  and  diligence  ;  and  any  false  statement  or 
unfair  concealment,  or  material  suppression  of  facts,  whereby 
the  carrier  is  misled,  will  exempt  him  from  the  responsibility 
of  a  common  carrier.1  "  In  the  absence  of  notice,"  says  Mr. 
J.  Nelson,  "  if  any  means  are  used  to  conceal  the  nature  of 
the  article,  and  thereby  the  owner  avoids  paying  a  reasonable 
compensation  for  the  risk,  this  unfairness,  and  its  consequence 
to  the  carrier,  upon  the  principles  of  common  justice,  will 
exempt  him  from  responsibility  ;  for  such  a  result  is  alike  due 
to  the  carrier,  who  has  received  no  reward  for  the  risk,  and 
to  the  party  who  has  been  the  cause  of  it,  by  means  of  dis- 
ingenuousness  and  unfair  dealing."  2 

§  259.  Whenever  the  owner  of  a  package  represents  the 
contents  of  it  to  the  carrier,  to  be  of  a  particular  value,  he 
will  not  be  permitted,  in  case  of  a  loss,  to  recover  from  the 
carrier,  at  the  most,  any  amount  beyond  that  value.3  Where 
a  carrier  received  two  bags  of  money  sealed  up,  and  he  was 
told  that  they  contained  £  200,  and  a  receipt  was  given, 
charging  10s.  per  cent,  for  carriage  and  risk,  and  the  bags  of 
which  the  carrier  was  robbed  contained  £  400,  it  was  held, 
that  the  plaintiff  could  not  recover  more  than  £  200  ; 4  and  it 
may  be  doubted  whether  the  defendant  would  now  be  con- 
sidered as  liable  even  to  that  extent,  and  whether  the  whole 
contract  would  not  be  considered  as  avoided,  and  rendered  a 
nullity,  by  the  fraudulent  representation.5 


1  2  Kent,  Comm.  603,  604  ;  Story  on  Bailm.  $  565  ;  Edwards  v.  Sher- 
ratt,  1  East,  R.  604  ;  Batson  v.  Donovan,  4  B.  &  Aid.  R.  21  ;  Titchburne 
».  White,  1  Str.  R.  145  ;  Relf  v.  Rapp,  3  Watts  &  S.  (Penn.)  R.  21. 

2  Per  Nelson,  J.,  in  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.) 
R.  116. 

3  Story  on  Bailm.  §  565  ;  and  see  the  authorities  cited,  ante,  to  $  258, 
and  Riley  v.  Home,  5  Bing.  R.  217. 

4  Tyler  v.  Morrice,  Garth.  R.  485. 

5  2  Stark.  Ev.  293,  (Eng.  ed.  1842)  ;  Story  on  Bailm.  §  565  ;  Harris 
0.  Packwood,  3  Taunt.  R.  264 ;  Bull.  N.  P.  71.     See  also  cases  cited  in 


268  LAW   OF    CAKRIERS.  [CH.  VII. 

§  260.  There  is  another  old  case,  which  turned  on  the 
doctrine  of  unfair  representation  by  the  owner  of  the  pro- 
perty, and  which  has  been  often  cited  by  the  Courts,  and 
is  introduced  by  Story,  in  his  very  learned  and  valuable 
work  on  Bailments.1  It  was  an  action  on  the  case,  brought 
against  a  country  carrier  for  not  delivering  a  box  with  goods 
and  money  in  it.  The  evidence  was,  that  the  plaintiff  de- 
livered the  box  to  the  carrier's  porter,  whom  he  appointed  to 
receive  goods  for  him,  and  told  the  porter  that  there  was  a 
book  and  tobacco  in  the  box,  when,  in  fact,  there  was  £  100 
besides  in  the  box.  It  was  agreed  by  the  counsel,  and  given 
in  charge  to  the  jury,  that  if  a  box,  with  money  in  it,  be 
delivered  to  a  carrier,  he  is  bound  to  answer  for  it,  if  he  be 
robbed,  although  it  was  not  told  him  what  was  in  it.  But 
Lord  Chief  Justice  Rolle  directed  the  jury,  that  although  the 
plaintiff  did  tell  him  of  some  things  in  the  box  only,  and  not 
of  the  money,  yet  he  must  answer  for  it,  for  he  need  not  tell 
the  carrier  all  the  particulars  in  the  box ;  but  it  must  come 
on  the  carrier's  part  to  make  a  special  acceptance.  But,  in 
respect  of  the  intended  cheat  to  the  carrier,  he  told  the  jury 
they  might  consider  him  in  damages ;  notwithstanding 
which,  ttte  jury  gave  £  97  against  the  carrier  for  the  money 
only,  (the  other  things  being  of  no  considerable  value,) 
abating  only  £  3  for  carriage.2  There  may  well  be  a  diffi- 
culty in  accounting  for  the  finding  of  the  jury  in  this  case.3 


Hollister  v.  Nowlen,  Appx.  p.  xviii.,  and  Cole  v.  Goodwin,  Appx.  p. 
xxxiii. 

1  Story  on  Bailm.  $  565  a. 

2  Kenrig  v.  Eggleston,  Aleyn,  R.  93. 

3  The  Reporter  has  added,  "  quod  durum  videbatur  circumstantibus." 
The  remark  of  the  Reporter,  says  Story,  (Bailm.  $  565  a,)  "seems  well 
founded  ;  and  it  is  difficult  to  account  for  the  verdict  of  the  jury,  unless 
upon  the  supposition,  that  they  were  of  opinion,  that  there  was  some  fraud 
in  the  carrier."     Lord   Mansfield,  speaking  of  the  Reporter's  note,  said 
upon  one  occasion  :  "  Now  I  own,  that  I  should  have  thought  this  a  fraud, 
and  I  should  have  agreed  in  opinion  with  the  circumstantibus."     Gibbon  v. 
Paynton,  4  Burr.  R.  2301. 


CH.  VII.]     LIMITATION   OF  RESPONSIBILITY  BY   NOTICES.         269 

§  261.  It  is  well  established,  that  the  owner  of  the  goods, 
or  the  person  delivering  them,  must  lake  care  not  to  do  or 
say  any  thing  which  shall  tend  to  mislead  the  carrier  in 
respect  to  the  requisite  care  to  be  taken  of  them.1  If  the 
owner  adopts  a  disguise  for  his  box  which  is  calculated  to 
prevent  the  carrier  from  taking  the  particular  care  of  it 
which  the  real  nature  and  value  of  its  contents  demand,  he 
cannot  recover  in  case  of  loss,  even  in  the  case  of  gross 
negligence,  beyond  the  value  of  the  box  itself;  2  as,  for  ex- 
ample, by  labelling  a  box  or  a  trunk,  as  containing  articles 
of  a  different  nature  and  inferior  value  from  what  are  its  real 
contents.3 

§  262.  The  case  of  Orange  County  Bank  v.  Brown,  in 
New  York,*  which  has  been  already  noticed,6  is  in  accord- 
ance with  the  incontrovertible  principle,  that  no  person  has 
a  right,  by  practising  concealment  or  fraud,  to  impose  a  duty 
upon  another,  which  he  would  not,  if  acting  advisedly,  have 
undertaken.  That  was  a  case,  in  which  a  traveller's  trunk 
contained  $11,250,  and  the  plaintiff  sought  to  recover  it  as  a 
part  of  the  baggage  lost.  The  Court  held,  that  it  did  not  fall 
within  the  commonly  received  import  of  the  term  "baggage  ;" 
and  that  an  attempt  to  have  it  carried  free  of  reward,  under 
cover  of  "  baggage,"  was  an  imposition  upon  the  carrier  ; 
that  he  was  thereby  deprived  of  his  just  compensation,  besides 
being  subjected  to  unknown  hazards.  The  principle  of  this 
case  was  applied  in  the  case  of  Pardee  v.  Drew,  in  the  same 

State,6  in  which  it  was  held,  that  a  carrier  was  not  liable  for 

i 

1  2  Kent,  Comm.  602,  603,  604.     See  also  Hollisteru.  Nowlen,  Appx. 
p.  xviii.,  and  Cole  v.  Goodwin,  Appx.  p.  xxxiii. 

2  Bradley  v.  Waterhouse,  1  Mood.  &  Malk.  R.  150  ;  and  see  Story  on 
Bailm.  §  77. 

3  Relf  v.  Rapp,  3  Watts  &  S.  (Penn.)  R.  91. 

4  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  R.  85,  recognized 
in  Hawkins  v.  Hoffman,  6  Hill,  (N.  Y.)  R.  586. 

5  Ante,  $  115. 

6  Pardee  v.  Drew,  25  Wend.  (N.  Y.)  R.  85. 

23* 


270  LAW   OF   CARRIERS.  [CH.  VII. 

the  loss  of  a  trunk  which  contained  valuable  merchandise, 
and  nothing  else.  The  Court,  by  Nelson,  J.,  would  not  say, 
that  the  plaintiff  intended  to  impose  upon  the  defendant,  and 
under  the  cover  of  "  baggage,"  to  obtain  the  transportation 
of  merchandise  free  of  expense,  for  that  was  not  material ; 
it  was  sufficient,  that  that  was  the  practical  effect  of  his 
conduct,  and  that  neither  the  captain  of  the  steamboat  or 
any  of  the  hands  on  board,  could  have  suspected,  that  it 
was  a  box  of  costly  merchandise,  requiring  extraordinary 
attention  and  care ;  the  defendant  was  doubly  wronged ; 
1st,  deprived  of  his  just  reward  for  carrying  the  goods  ;  and 
2d,  prevented  from  exercising  proper  precaution  against  the 
dangers  to  which  the  property  may  be  exposed. 

§  263.  Not  unlike  in  principle  from  the  two  cases  cited  in 
the  preceding  section  is  the  case  of  Miles  v.  Cattle.1  In 
this  case,  the  plaintiff,  a  passenger  by  the  defendants'  coach, 
having  received  a  parcel  of  value  from  a  friend,  to  be  booked 
and  conveyed  by  the  same  coach,  instead  of  doing  as  di- 
rected, he  placed  it  in  his  own  bag,  which  was  subsequently 
lost ;  being  a  wrong-doer  towards  the  defendants,  the  loss 
was  held  to  be  imputable  to  his  own  misfeasance,  and  he 
could  not  sue  them  for  the  value. 

§  264.  Where  there  is  no  notice,  if  there  are  no  improper 
means,  or  artifice,  adopted  by  the  person  who  sends  the 
goods,  to  conce*al  the  nature  and  value  of  the  contents  of  the 
box,  parcel  or  package,  to  mislead  or  deceive  the  carrier,  the 
person  sending  the  goods  is  not  bound  to  make  the  dis- 
closure, unless  inquiry  is  made  of  him  on  the  subject ; 
although  the  carrier  has  the  right  to  make  the  inquiry,  and 
to  have  a  true  answer,  and  if  a  false  answer  is  given,  he 
will  not  be  responsible.2  In  Jackson  v.  Walker,  decided  in 

1  Miles  v.  Cattle,  6  Bing.  R.743,  and  cited  ante,  §  41. 

2  Opinion  of  Chancellor  Wai  worth,  in  Sewall  v.  Allen,  6  Wend.  (N.  Y.) 
R.  349  ;  Hollister  v.  Nowlen,  Appx.  p.  xviii.  ;  Cole  v.  Goodwin,  Appx. 


CH.  VII.]     LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.        271 

1842,  in  the  English  Court  of  Exchequer,1  Baron  Parke 
says  :  "  I  take  it  now  to  be  perfectly  well  understood,  ac- 
cording to  the  majority  of  opinions  upon  the  subject,  that  if 
any  thing  is  delivered  to  a  person  to  be  carried,  it  is  the 
duty  of  the  person  receiving  it,  to  ask  such  questions  about 
it,  as  may  be  necessary  ;  if  he  ask  no  questions,  and  there 
be  no  fraud  to  give  the  case  a  false  complexion,  on  the  de- 
livery of  the  parcel,  he  is  bound  to  carry  the  parcel  as  it  is. 
It  is  the  duty  of  the  person  who  receives  it  to  ask  questions ; 
if  they  are  answered  improperly,  so  as  to  deceive  him,  then 
there  is  no  contract  between  the  parties  ;  it  is  a  ground 
which  vitiates  the  contract  altogether."  2  Mr.  J /"Nelson,  in 
giving  the  opinion  of  the  Court,  in  Orange  County  Bank  v. 
Brown,  in  New  York,3  says :  "  As  a  general  rule,  when  - 
there  has  been  no  qualified  acceptance  of  the  goods  by 
special  agreement,  or  where  an  agreement  is  not  to  be  in- 
ferred from  notice,  the  carrier  is  bound  to  make  the  inquiry, 
as  to  the  value  of  the  box  or  the  article  delivered  to  him ; 
and  the  owner  must  answer  at  his  peril ;  and  if  such  inqui- 
ries are  not  made,  and  it  is  received  for  such  price  for 


p.  xxxiii. ;  Phillips  v.  Earle,  8  Pick.  (Mass.)  R.  182  ;  2  Kent,  Comm.  603, 
604  ;  Story  on  Bailm.  §  567  ;  Brooke  v.  Pickwick,  4  Bing.  R.  218  ;  Sleat 
v.  Flagg,  5  B.  &  Aid.  R.  342  ;  Batson  v.  Donovan,  4  Ib.  21. 

1  Jackson  v.  Walker,  10  M.  &  Welsh.  R.  168. 

2  In  this  case,  it  appeared,  that  the  plaintiff  went  on  board  the  defend- 
ant's steamboat,  with   his   horse   and  carriage,  paying   the  defendant's 
charge  of  a  "  light  four  wheeled  phaeton  ;  "  that  jewelry  and  watches  of 
great  value,  which  much  increased  its  weight,  were  contained  in  a  box 
under  the  seat ;  and  that  he  made  no  communication  of  that  fact  to  the 
defendant.     The  carriage  was  taken  safely  across  the  river,  and  on  the 
arrival  of  the  boat  at  the  pier  head  at  Liverpool,  two  of  the  defendant's 
servants  put  the  carriage  out  upon  the  slip,  towards  the  quay,  but  in  doing 
so  were  overpowered  by  its  weight,  and  it  ran  down  into  the  river,  whereby 
the  jewelry  and  watches  were  much  injured  :   It  was  held,  that  the  plain- 
tiff's right  of  action  for  this  injury  was  not  affected  by  his  not  having 
communicated  the  fact  of  the  jewelry  and  watches  being  contained  in  the 
carriage. 

3  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  R.  115. 


272  LAW    OP   CARRIERS.  [CH.  VII. 

transportation  as  is  asked,  with  reference  to  its  bulk,  weight 
or  external  appearance,  the  carrier  is  responsible  for  the  loss, 
whatever  may  be  its  value."  J 

§  265.  But,  it  is  not  competent  to  the  carrier,  in  an  action 
against  him  for  negligence,  to  set  up  as  a  defence,  under  a 
plea  of  not  guilty,  that  the  owner  of  the  goods  misrepre- 
sented them  ;  the  plea  operating  only  as  a  denial  of  the  loss 
or  damage,  and  not  of  the  receipt  of  the  goods  by  the 
carrier,  who  ought  either  '  to  plead  the  misrepresentation 
specially,  or  traverse  the  acceptance  of  the  goods  for  the 
purpose  of  being  carried.2 

§  266.  It  is  said,  that  it  was  to  obviate  the  inconvenience 
of  asking  questions  in  every  case,  and  the  difficulty  of 
proving  the  statements  made  on  each  occasion,  that  common 
carriers,  in  England,  resorted  to  the  expedient  of  a  general 
notice,  that  they  would  not  be  liable  for  the  loss  of  money 
and  valuables,  unless  they  were  informed  of  their  existence  ; 
nor  for  the  loss  of  ordinary  goods  and  chattels  beyond  a 
certain  amount,  unless  the  value  of  such  goods  was  declared 
and  entered  at  the  office,  and  an  increased  rate  of  remunera- 
tion paid  for  their  conveyance.3  But  there  has  been  some 
question  as  to  whether  the  carrier  is  not  bound  to  inquire, 
although  he  has  given  notice.4  The  case  of  Gibbon  v. 
Paynton,5  was  among  the  earliest,  if  not  the  very  first,  of 
the  cases,  in  which  a  carrier's  notice  appears.6  The  defend- 
ants in  this  case,  had  advertised,  that  their  coachman 

1  And  see  the  case  referred  to  ante,  §  115,  262  ;  and  see  also  Hawkins 
v.  Hoffman,  6  Hill,  (N.  Y.)  R.  586.     Lord  Mansfield,  in  Gibbon  v.  Payn- 
ton, does  not  deny,  that  mere  silence  as  to  the  amount,  may  in  general  be 
honest.     4  Burr.  R.  2298. 

2  Webb  v.  Page,  6  Scott,  New  R.  604  ;  and  Man.  &  Gr.  R.  196. 

3  Add.  on  Contr.  814. 

4  Story  on  Bailm.  $  568. 

5  Gibbon  v.  Paynton,  4  Burr.  R.  2298. 

6  9  Geo.  3,  Easter  Term,  1769. 


CH.  VII.]      LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.       273 

would  not  be  Answerable  for  money,  or  jewels,  or  other 
valuable  goods,  unless  he  had  notice  that  such  were  deliv- 
ered to  him  ;  and  it  was  probable  that  the  plaintiff  knew  of 
the  notice,  and  understood,  that,  by  the  course  of  trade, 
money  was  not  carried  without  an  extra  premium.  Yet  the 
plaintiff  delivered  to  the  coachman  £  100  hid  in  hay  in  an 
old  nail  bag.  The  bag  and  the  hay  were  carried  safely, 
but  the  money  was  lost.  It  was  held,  the  plaintiff  could 
not  recover.  Lord  Mansfield  proceeded  entirely  independ- 
ent of  the  notice  ;  but  Yates,  J.,  considered  the  notice  equiv- 
alent to  a  special  acceptance,  and  Aston,  J.,  hinted  at  the 
same  ground.  The  Judges,  in  the  case  of  Batson  v.  Dono- 
van,1 with  the  exception  of  Best,  C.  J.,  held,  that  the  effect 
of  the  notice  is  to  prevent  the  necessity  of  a  particular 
inquiry  in  each  case  ;  and  that,  in  cases  of  notices,  the 
party  who  sends  the  goods,  without  payment  for  the  extra- 
ordinary value,  holds  them  out,  impliedly,  as  articles  of 
ordinary  value ;  and  under  such  circumstances,  the  con- 
tract itself  becomes  a  nullity.2  But  Mr.  J.  Best  was  of 
opinion,  that  when  there  is  notice,  the  carrier  is  bound 
to  inquire,  and  held  that  the  owner  of  the  goods  is  not 
bound  to  disclose  their  value  unless  asked  ;  and  to  this 
opinion  he  has  steadily  adhered,3  and  so  strenuously,  that 
in  one  case,4  he  said,  he  must  continue  to  retain  his  opinion, 
till  the  twelve  Judges  decided  he  was  wrong.6  In  Orange 
County  Bank  v.  Brown,6  the  Court,  by  Nelson,  J.,  hold,  that 
in  case  of  notice,  the  carrier  is  not  bound  to  make  the 
inquiry,  and  that  if  the  owner  omits  to  make  known  the 
value,  and  does  not  therefore  pay  the  premium,  at  the  time  of 


1  Batson  v.  Donovan,  4  B.  &  Aid.  R.  21. 

2  See  Story  on  Bailra.  §  568. 

3  Sleat  v.  Fagg,  5  B.  &  Aid.  R.  342. 

4  Brooke  v.  Pickwick,  4  Bing.  R.  218. 

5  See  also  Garnett  v.  Willan,  5  B.  &  Aid.  R.  53  ;  Riley  v.  Home, 
5  Bing.  R.  217;  Bignold  v.  Waterhouse,  1  M.  &  Sel.  R.  261. 

6  Orange  County  Bank  v.  Brown,  9  Wend.  (N.  Y.)  R.  115. 


274  LAW   OP   CARRIERS.  [CH.  VII. 

the  delivery,  "  it  is  considered  as  dealing  unfairly  with  the 
carrier,  and  he  is  not  liable  to  the  amount  mentioned  in  his 
notice,  or  not  at  all,  according  to  the  terms  of  the  notice."  l 

§  267.  As  the  carrier  may  set  up  fraud  and  imposition  on 
the  part  of  the  person  sending  the  goods,  the  latter,  although 
the  former  is  protected  by  a  general  notice,  may  charge  and 
prove  negligence  in  the  former ;  so  that,  in  effect,  proof  of 
negligence  is  an  answer  to  proof  of  notice.2  "  If  the  carrier 
should  perchance  refuse  to  carry  the  stuffe  unless  promise 
were  made  unto  him  that  he  should  not  be  charged  for  any 
misdemeanor  that  should  be  in  him,  the  promise  were  void  ; 
for  it  were  against  reason,  and  against  good  manners."  3  It 
cannot  therefore  be  supposed,  that  the  person  sending  goods, 
and  the  carrier  who  is  to  convey  them,  intended  to  enter  into 
a  contract  for  the  letting  and  hiring,  of  labor  and  care,4  and 
agreed,  at  the  same  time,  to  dispense  with  the  exercise  of  such 
labor  and  care.  "  It  is  impossible,"  according  to  Lord  Ellen- 
borough,  "  without  outraging  common  sense,  so  to  construe 
the  notice  as  to  make  the  carrier  say,  {  We  will  receive  your 
goods,  but  will  not  be  bound  to  take  any  care  of  them,  and 
will  not  be  answerable  at  all  for  any  loss  occasioned  by  our 
own  misconduct,  be  it  ever  so  gross  and  injurious.'  "  6  In 
Newbern  v.  Just,6  it  was  affirmed  by  Best,  C.  J.  :  —  "  It  has 
been  decided  over  and  over  again,  that  notice  does  not  protect 


1  But  see  Hollister  v.  Nowlen,  Appx.  p.  xviii. ;   Cole  v.  Goodwin, 
Appx.  p.  xxxiii. 

2  2  Stark.  Ev.  291. 

3  Doct.  &  Stud.  Dial.  2,  ch.  49  ;  Noy's  Max.  ch.  43,  92,  Best,  C.  J.  ; 
Newbern  v.  Just,  2  C.  &  Pa.  R.  76. 

4  See  ante,  §  1. 

5  Lyon  ».  Mells,  5  East,  R.  438.     It  is  evident,  that  one  contracting 
party  cannot  impose  a  condition  upon  the  other,  going  to  the  destruction 
of  the  thing  granted,  when,  by  the  well  known  rule,  the  thing  granted 
passes  freed  from  the  condition.     Tindal,  C.  J.,  Lucas  v.  Goodwin,  4  Scott, 
R.  509. 

6  Newbern  v.  Just,  2  C.  &  Pa.  R.  76. 


CH.  VII.]     LIMITATION  OF  KESPONSIBILITY   BY  NOTICES.        275 

a  carrier  against  negligence."  A  notice,  therefore,  applies 
only  to  the  responsibility  of  the  carrier  as  an  INSURER,  and 
does  not  exempt  him  from  the  consequences  of  his  own 
negligence,  or  from  the  negligence  of  his  servants  and 
agents.  Neither  by  public  notice  seen  and  read  by  his 
employer,  nor  even  by  special  agreement,  can  the  carrier 
exonerate  himself  from  the  consequences  of  gross  neglect.1 

§  268.  What  constitutes  gross  neglect  or  gross  negligence, 
in  these  and  other  cases,  and  whether  there  is  any  real  dis- 
tinction between  negligence  and  gross  negligence,  as  we 
have  already  shown,  has  been  a  matter  of  judicial  doubt ; 
and  that  the  distinction  could  not,  with  precision,  be  stated.2 
In  Wyld  v.  Pickford,3  Mr.  Baron  Parke  says ;  "  The  weight 
of  authority  seems  to  be  in  favor  of  the  doctrine,  that,  in 
order  to  render  a  carrier  liable  after  notice,  it  is  not  neces- 
sary to  prove  an  abandonment  of  that  character,  or  an  act 
of  wilful  misconduct,  but  that  it  is  enough  to  prove  an  act 
of  ordinary  negligence."  Again,  "  he,"  (the  carrier,  not- 
withstanding the  notice,)  "  undertakes  to  carry  from  one 
place  to  another,  and  for  some  reward  in  respect  of  the 
carriage,  and  is,  therefore,  bound  to  use  ordinary  care  in  the 
custody  of  the  goods."  This  case  has  been  considered  as 
putting  at  rest  any  further  question  on  the  subject,  it  being 
entirely  satisfactory  in  its  reasoning  ;  so  that,  in  cases  of 


1  Hollister  v.  Nowlen,  Appx.  p.  xviii.  ;  Cole  «.  Goodwin,  Appx.  p. 
xxxiii.  ;  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank, 
Appx.  p.  liv.  ;  Riley  v.  Home,  5  Bing.  R.  218;  Wyld  v.  Pickford,  8  M. 
&  Welsh.  R.  461  ;  Hinton  v.  Dibdin,  2  Adol.  &  Ell.  New  R.  646  ; 
Camden  and  Amboy  Railroad  Co.  v.  Burke,  13  Wend.  (N.  Y.  R.  611  ; 
Swindler  v.  Billiard,  Rich.  (S.  C.)  R.  286  ;  Boyle  v.  M'Laughlin,  4  H. 
&  Johns.  (Md.)  R.  291  ;  Bean  v.  Greene,  3  Fairf.  (Me.)  R.  422.  No- 
tice, clearly,  would  not  screen  the  defendants  from  loss  occasioned  by 
their  negligence  or  want  of  ordinary  care.  Per  Hubbard,  J.,  in  Thomas 
v.  Boston  Railroad  Corp.  10  Met.  (Mass.)  R.  480. 

8  See  ante,  §  22,  23,  et  seq. 

3  Wyld  r.  Pickford,  8  M.  &  Welsb.  R.  461. 


276  LAW    OF    CARRIERS.  [CH.  WI. 

notices,  the  carrier  is  liable  for  losses  and  injuries  occasioned 
not  only  by  gross  negligence,  but  by  ordinary  negligence,1 
Therefore,  as  there  has  been  occasion  before  to  observe,  in 
cases  and  by  means  of  notices,  common  carriers  descend 
only  to  the  situation  of  private  carriers  for  hire.2  There 
has  also  been  occasion  before  to  show,  that  in  most  cases 
the  question  of  ordinary  negligence  is  more  a  question  of 
fact  to  be  determined  by  a  jury,  than  of  law.3  It  may  be 
repeated,  that,  if  the  want  of  fair  dealing,  by  an  improper 
concealment  of  the  nature  and  value  of  the  goods,  has  been 
the  cause  of  negligence  in  the  carrier,  of  which  he  would 
otherwise  have  not  been  guilty,  the  person  sending  the 
goods  cannot  complain  of  the  consequences  of  his  own 
act.4 

§  269.  The  carrier  will  also  be  liable,  although  protected 
by  a  notice,  if  the  loss  has  happened  in  consequence  of  his 
misfeasance,  the  difference  between  which  and  negligence 
has  already  been  adverted  to ;  and  it  appeared,  that  the  first 
is  in  direct  contravention  of  the  carrier's  contract,  by  which 
its  performance  is  prevented,  and  that  the  latter  takes  place 
in  the  course  of  performing  the  contract.5  If  the  carrier 
takes  the  goods  beyond  the  place  of  destination,  and  they 
are  lost,  he  is  responsible,  although  otherwise  his  notice 
would  protect  him  ;  because  in  so  doing  he  lias  committed 
a  misfeasance.6  Of  this  description  of  misfeasance,  is  the 


1  Story  on  Bailm.  §  571.    See  also  the  opinion  of  Lord  Denman,  in 
Hinton  v.  Dibdin,  2  Adol  &  Ell.  New  R.  646. 

2  Ante,  §  54,  et  seq. ;  and  see  the  subject  of  ordinary  negligence  treated 
at  large,  ante,  Chap.  III.     As  to  what  was  sufficient  negligence  to  ren- 
der the  owners  of  the  steamboat  Lexington  liable,  under  a  special  contract, 
see  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  Appx. 
p.  liv. 

3  Ante,  §  51,  and  the  authorities  cited  in  that,  and  in  sections  following. 
*  Ante,  §  258,  et  seq. 

5  Ante,  §  12. 

6  Story  ou  Bailm.  §  561. 


CH.  VII.]     LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.       277 

case  of  Ellis  v.  Turner  : l  A  vessel  belonging  to  the  defend- 
ant, and  plying  from  Hull  to  Gainsborough,  took  on  board 
some  goods  of  the  plaintiff  to  be  delivered  at  Stockwith.  It 
went  safe  as  far  as  Stockwith,  and  there  delivered  a  part  of 
the  cargo,  but  not  the  goods  in  question  ;  and,  in  proceeding 
on  her  voyage,  sunk,  before  she  arrived  at  Gainsborough. 
The  defendants  had  published  a  notice,  protecting  them- 
selves from  the  want  of  care  in  the  master  or  crew  ;  but 
they  were,  notwithstanding,  made  accountable  for  this  mis- 
feasance of  their  servant,  the  master  of  the  vessel,  in  not 
delivering  the  goods  at  Stockwith  in  safety,,  when  he  might 
have  done  so. 

§  270.  In  like  manner  it  will  be  a  misfeasance  to  deliver 
the  goods  to  the  wrong  person,  as  well  as  it  is  at  the  wrong 
time  and  place.2  If  the  delivery  be  by  the  carrier  to  the 
wrong  person,  although  it  may  have  been  innocently  made 
by  mistake,  or  by  his  being  imposed  upon,  he  will  be  liable 
to  the  owner  of  the  goods  for  the  full  value  of  them,,  which 
are  thus  lost.  Such  a  wrongful  delivery  is  a  misfeasance, 
and  indeed  a  conversion  of  the  property.3 

§  271.  In  like  manner,  also,  if  the  goods  are  sent  by  a 
different  conveyance  from  that  implied  in  the  undertaking 
or  in  a  different  manner,  and  they  are  lost,  the  carrier  will 
be  liable  for  the  misfeasance,  although  otherwise  he  would 
be  exonerated  from  the  loss  by  the  terms  of  a  notice.  In 
Garnett  v.  Wilian,4  such  an  act  of  misfeasance  annulled  the 
notice.  The  defendants,  Jones  &  Wilian,  had  accepted  a 


1  Ellis  v.  Turner,  8  T.  R.  531. 

2  Story  on  Bailm.  §  545  b. 

3  Siephenson  v.  Hart,  4  Bing.  R.  470  ;  Duff  v.  Budd,  3  Br.  &  Bing. 
R.  177 ;  Youle  v.  Harbottle,  Peake,  R.  68 ;  Devereux  v.  Barclay,  2  B. 
&  Aid.  R.  702 ;  Stephens  v.  Elvvell,  4  M.  &  Sel.  R.  259 ;  Powell  v. 
Myers,  26  Wend.  (N.  Y.)  R.  591. 

«  Garnett  v.  Wilian,  5  B.  &  Aid.  R.  53. 
24 


278  LAW   OF   CARRIERS.  [CH.  VII. 

parcel,  booked  to  be  sent  by  their  coach  from  London  to 
Worcester  ;  it  was  carried,  conformably  to  their  contract,  a 
part  of  the  way,  and  then  forwarded  on  by  another  coach, 
in  which  Jones  had  no  interest,  and  was  ultimately  lost.  It 
was  held,  that  the  plaintiffs  having  contracted  for  the  care 
and  attention  of  both  Willan  and  Jones,  had  had  the  care 
and  attention  of  one  only  ;  so  that  they  had  not  obtained 
that  for  which  they  contracted,  by  the  wrongful  acts  of  the 
defendants ;  and  this  being  in  direct  contravention  of  their 
contract,  they  were  made  responsible  for  the  whole  loss, 
notwithstanding  the  notice.  Another  decision  upon  this 
point  is  that  in  Sleat  v.  Fagg.1  The  defendants,  in  this 
case,  having  published  the  usual  notice,  received  a  parcel  of 
considerable  value,  and  contracted  to  send  it  by  the  mail ; 
no  insurance  was  made  thereon,  or  intimation  given  of  its 
value  ;  it  was  sent  by  another  coach  and  lost.  The  Court 
held,  that  if  the  defendant  had  forwarded  the  parcel  by  the 
mail,  in  pursuance  of  his  contract,  he  would  not  have  been 
liable  for  the  loss  ;  but  as  he  had  acted  in  direct  contraven- 
tion of  it,  it  was  a  misfeasance,  and  against  that  the  notice 
was  no  protection. 

§  272.  The  above  case  of  Sleat  v.  Fagg,  is  so  similar  in 
its  facts  to  Batson  v.  Donovan,2  and  yet  so  opposite  in  its 
decision,  that  it  is  proper  to  compare  the  two  determinations. 
In  each  of  them  the  bailment  was  precisely  the  same;  in 
each  there  was  proof  of  the  publication  of  the  notices,  of 
the  value  of  the  goods,  of  the  concealment  of  that  value, 
and  of  their  loss.  In  the  last  case,  the  defendant  was  pro- 
tected by  his  notice ;  in  the  first  named  case,  he  was  held 
responsible  for  the  goods.  In  the  former  case,  the  loss  pro- 
ceeded from  the  negligence  of  the  defendant ;  in  the  latter, 
from  his  misfeasance  ;  and,  as  the  concealment  of  the  value, 
which  was  the  plaintiff's  fault,  had  caused  the  negligent 

1  Sleat  v.  Fagg,  5  B.  &  Aid.  R.  342. 

2  Batson  v.  Donovan,  4  B.  &  Aid,  R.  21. 


CH.  VII.]     LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.        279 

performance  of  the  contract,  he  was  barred  from  complain- 
ing of  that  which  was  the  consequence  of  his  own  act ;  but 
such  a  concealment  could  never  cause  a  misfeasance,  that  is, 
a  non-performance  of  the  contract,  and,  therefore,  in  that 
case,  he  is  entitled  to  maintain  his  action.  The  principle  on 
which  the  decisions  in  these  cases  proceeded  is  perfectly  in- 
telligible, so  long  as  misfeasance  and  negligence  are  not 
confounded  with  each  other.1 

§  273.  The  carrier  commits  an  act  of  misfeasance  if  he 
disregards  public  regulations  established  by  law  for  the 
navigation  of  a  canal ;  and  consequently  damage  sustained 
by  bilging  in  a  lock  which  was  entered  by  him  in  contra- 
vention of  those  regulations,  must  be  compensated  by  him. 
The  damage  done  by  bilging  would  have  been  avoided,  had 
the  carrier's  canal  boat  been  where  it  ought,  by  the  law  of 
the  canal,  to  have  been.2 

§  274.  In  like  manner,  and  on  the  same  principle,  a  com- 
mon carrier,  undertaking  to  transport  by  water,  is  not 
protected  by  his  notice,  if  he  does  not  employ  a  vessel 
reasonably  stout,  strong,  and  well  equipped  for  the  voyage  ; 
for  the  existence  of  the  common  notice  will  not,  in  any 
respect,  change  this  implied  duty.3  Neither  will  it  change 
the  implied  duty  of  a  common  carrier  to  guard  against  a 
defect  in  the  vehicle  or  machinery,  used  for  the  transporta- 
tion ;  for  there  is  a  breach  of  the  implied  warranty,  in  such 
cases,  that  the  vehicle  and  machinery  shall  be  in  good  order 
and  condition,  and  suited  to  the  nature  of  the  business  and 
employment.  Indeed,  if  they  are  not  in  such  condition,  and 
the  carrier  might,  by  exercising  proper  diligence,  have  ascer- 


1  See  Jones  on  Carr.  29. 

2  Alwood  v.  Reliance  Trans.  Co.  9  Watts,  (Penn.)  R.  87. 

3  See  as  to  seaworthiness,  ante,  §  173 ;  Story  on  Bailm.  §  562  ;  Lyon 
v.  Mells,  5  East,  R.  428  ;  Clark  v.  Richards,  1  Conn.  R.  54. 


280  LAW   OF   CARRIERS.  [CH.  VII. 

tained  it,  it  will  amount  to  negligence.1  Still  farther,  it  has 
been  held,  that  if  the  defect  in  the  vehicle  or  machinery,  is 
unknown  to  the  carrier,  and  is  not  discoverable  on  inspec- 
tion, and  the  loss  happens  without  any  culpable  negligence 
on  the  part  of  the  carrier,  or  his  agents,  and  there  is  a  notice, 
that  "  all  baggage  is  at  the  risk  of  the  owner,"  the  carrier 
will,  notwithstanding,  be  liable  for  any  loss  occasioned  to  the 
baggage  by  the  defect  of  the  vehicle  or  machinery.2  But 
still,  it  seems  by  an  old  case,  that  those  means  would  be 
deemed  sufficient,  which,  without  any  extraordinary  accident, 
will  probably  perform  the  voyage  or  the  journey.3  It  is  the 
duty  of  common  carriers  on  Lake  Champlain,  to  provide 
boats  which  shall  be  safe  and  seaworthy  for  the  season  of  the 
year  at  which  goods  are  shipped.4 

§  275.  The  utmost  effect,  then,  that  can  be  given  to  a 
general  notice,  or  special  contract,  both  in  England  and  in 
this  country,  although  as  broad  and  absolute  in  its  terms  as 
it  can  be,  will  not  discharge  a  common  carrier  from  liability 
for  negligence,  misfeasance,  or  want  of  ordinary  care,  either 
in  the  seaworthiness  of  the  vessel,  or  her  proper  equipments 
and  furniture  ;  nor  is  it  allowed  to  exempt  the  carrier  from 
accountability  for  losses  occasioned  by  a  defect  in  the 
vehicle,  or  mode  of  conveyance  used  in  the  transportation.5 

§  276.  It  has  been  shown,  that  the  burden  of  proof  is  on 


1  Story  on  Bailm.  §  571  a,  (edit.  1846.)     Carriers  by  land  must  have 
good  vehicles,  and  well  broke  horses.      M'Kinney  v.  Niel,  1  M'Lean, 
(Cir.  Co.)  R.  540. 

2  Camden  and  Amboy  Railroad  Co.  v.  Burke,  13  Wend.  (N.  Y.)  R. 
611  ;  Story  on  Bailm.  $  571  a;  and  see  the  case  of  the  unknown  and 
undiscoverable  defect  in  a  rudder,  ante,  §  171. 

3  Amies  v.  Stevens,  1  Stra.  R.  128. 
*  Day  t>.  Ridley,  16  Verm.  R.  48. 

$  See  the  opinion  of  Nelson,  J.,  in  New  Jersey  Steam  Navigation 
Company  v.  Merchants  Bank,  Dec.  Term  Sup.  Co.  U.  States,  1847, 
Appx.  p.  liv. 


CH.  VII.]      LIMITATION   OF  RESPONSIBILITY  BY  NOTICES.        281 

the  carrier  to  show  a  knowledge  of  his  notice  in  the  person 
sending  the  goods  ;  l  but  when  that  is  made  fully  to  appear, 
the  burden  of  proof  is  then  on  the  person  sending  the  goods 
to  show  negligence,  &c.  in  the  carrier  ;  which  is  contrary  to 
the  general  rule  in  cases  of  common  carriers,  where  there  is 
no  notice  ; 2  for,  prima  fade,  the  burden  of  proof  is  on  a 
common  carrier  to  exempt  himself  from  liability.3 

§  277.  The  question  was  presented,  by  the  pleadings,  for 
decision  in  Hinton  v.  Dibdin,4  whether  since  the  passing  of 
the  act  of  11  Geo.  4,  and  1  Wm.  4,5  a  carrier  is  liable  for 
the  loss  of  goods  therein  specified,  by  reason  of  gross  negli- 
gence ;  and  the  decision  of  the  Court  in  Queen's  Bench 
was,  that,  under  the  act,  if  a  parcel  containing  any  of  the 
valuable  goods  enumerated  in  sect.  1,  be  sent  to  a  carrier 
for  conveyance  without  a  declaration  of  the  nature  and 
value  of  such  goods,  and  without  paying,  or  engaging  to 
pay,  an  increased  charge,  according  to  sect.  2,  the  carrier  is 
not  liable  for  their  loss,  though  it  happens  by  the  gross  neg- 
ligence of  his  servants.  Lord  Chief  Justice  Denman,  who 
delivered  the  judgment  of  the  Court,  said :  "  By  sect.  8,  it 
is  enacted,  that  nothing  in  this  act  shall  be  deemed  to  pro- 
tect such  carrier  from  the  felonious  acts  of  any  servant  in 
his  employ,  nor  to  protect  such  servant  from  liability  for 
any  loss  or  injury  by  his  own  personal  neglect  or  miscon- 
duct. The  former  branch  of  the  clause  is,  to  say  no  more, 
at  least  consistent  with  the  supposition,  that  for  conduct 


1  Ante,  %  247. 

2  Ante,  %  282 ;  Story  on  Bailm.  $  573 ;  and  see  ante,  Chap.  III.  $  61. 

3  See  Story  on  Bailm.  $  529. 

4  Hinton  v.  Dibdin,  2  Adol.  &  Ell.  (N.  S.)  R.  646.     By  the  Common 
Law  the  servants  of  the  carrier  are  not  liable  in  any  way  ex  contracts  to 
the  owner  of  the  goods  for  loss  or  damage  arising  from  his  own  personal 
negligence.     Cavenagh  v.  Such,  1  Price,  R.  328  ;  Williams  v.  Cranston, 
2  Stark.  82 ;  Hyde  v.  Trent  and  Mersey  Navigation  Company,  5  T.  R. 
397. 

5  Ante,  $  256. 

24* 


282  LAW   OF   CARRIERS.  [CH.  VII. 

short  of  felony  the  carrier  is  no  longer  liable ;  whereas  it  is 
obvious  that,  before  the  passing  of  the  act,  the  carrier  would 
have  been  liable  for  acts  of  the  servant  not  amounting  or 
approaching  to  felony  —  negligence.  The  latter  branch 
seems  to  have  been  introduced  ex  abundanti  cautela,  merely, 
seeing  that  there  is  nothing  in  any  part  of  the  act  to  vary 
the  liability  of  the  servant  to  the  master  for  any  misconduct 
of  the  former."  l 


1  See  the  Report  of  Officers  of  Railway  Department  of  Board  of  Trade 
in  England,  (1842,  p.  xix.)  which  contains  the  following  remarks  : 

"  The  carriers'  act  distinctly  provides,  that  no  general  notice  shall  limit 
the  liability  of  common  carriers  with  regard  to  objects  other  than  those 
enumerated  in  the  act,  and  the  proper  rule  appears  to  be,  that  although 
railway  companies  may  refuse  to  take  charge  of  passengers'  luggage, 
unless  such  reasonable  regulations  as  they  find  necessary  are  complied 
with,  yet,  that  if  they  do  take  charge  of  such  luggage,  they  incur  the 
ordinary  common  law  liability  of  carriers,  subject  only  to  the  limitation  of 
the  carriers'  act. 

"  The  same  principles  apply  to  regulations  limiting  the  company's  lia- 
bility as  regards  carriages  and  horses.  This  is  sometimes  done  by  refusing 
to  carry  horses  or  carriages  unless  the  owner  will  sign  a  special  agreement 
exempting  the  company  from  all  liability.  This  is  clearly  illegal  as  regards 
the  general  liability,  railway  companies  being  bound,  like  other  carriers,  by 
the  Common  Law,  to  undertake  the  carriage  of  all  articles  offered  to  them, 
unless  there  is  some  reasonable  ground  for  refusal,  and  it  is  only  allowable 
to  the  extent  of  guarding  against  any  extraordinary  risk  arising  from  the 
nature  or  value  of  the  object,  unless  a  proper  insurance  is  paid.  In  the 
case  of  carriages  it  is  generally  admitted  that  there  is  no  ground  for  charg- 
ing any  insurance  ;  but  in  the  case  of  horses,  it  appears  fair  that  the  com- 
pany should  not  be  responsible  for  accidents  arising  from  the  viciousness  or 
restiveness  of  the  animal,  and  that  they  should  not  be  responsible  for  more 
than  a  fair  average  value,  unless  the  horse  has  been  entered  as  of  extra- 
ordinary value,  and  a  reasonable  insurance  paid." 

That  a  company  would  not  be  liable  for  accidents  to  horses,  arising  from 
the  animals  own  viciousness,  &c.,  see  ante,  §  214  a. 

The  report  goes  on  to  remark  in  a  subsequent  part,  p.  xx,  that  "  in  two 
instances  representations  had  been  made  to  the  department  of  the  Board 
of  Trade,  to  the  effect  that  railway  companies  were  in  the  habit  of  enfor- 
cing an  illegal  regulation,  requiring  parties  who  sent  carriages  or  horses  by 
the  railway,  to  sign  a  special  agreement  exempting  the  company  from  all 
liability  for  loss,  however  occasioned.  Letters  were  written  to  companies, 


CH.  VII.]     LIMITATION  OF  EESPONSIBILITY  BY  NOTICES.       283 

§  278.  There  may  be  a  loaiver  of  notice.1  Bay  ley,  J.,  in 
Helsby  v.  Mears,2  entertained  no  doubt,  that  a  common  car- 
rier, notwithstanding  he  has  limited  his  responsibility  by  a 
notice,  that  he  will  not  be  answerable  for  goods  of  more 
than  a  certain  value,  may  be  bound  by  a  special  contract 
made  with  any  individual,  which  is  contrary  to  the  terms  of 
the  notice  ;  and,  in  this  opinion,  both  Holroyd,  J.,  and  Lit- 
tledale,  J.,  concurred.  And,  it  was  held  in  this  case,  that  an 


pointing  out  the  illegality  of  such  a  course,  excepting  so  far  as  might  be 
necessary  to  protect  themselves  against  extraordinary  risk,  arising  from 
the  nature  or  value  of  the  object,  and  the  result  was,  that  the  regulation 
as  regarded  carriages  was  entirely  withdrawn,  and  as  regarded  horses, 
modified  in  conformity  with  principles  above  stated." 

In  the  case  of  the  York  v.  North  Midland  Railway  Co.  (Queen's 
Bench,  1849;  Law  Rep.  Boston,  for  May,  1850,)  the  declaration  in  case 
stated  that  defendants  were  proprietors  of  the  Y.  and  N.  M.  Railway,  and 
of  certain  carriages  for  the  conveyance  of  passengers,  cattle,  and  goods 
and  chattels  upon  the  said  railway  for  hire  ;  that  they  received  nine  horses 
of  the  plaintiff,  to  be  safely  and  securely  carried  in  the  carriages  of  the 
defendants  by  the  railway  for  hire  ;  and  that,  therefore,  it  was  the  duty 
of  the  defendants  safely  and  securely  to  carry,  and  convey,  and  deliver  the 
horses  of  the  plaintiff;  and  then  averred  the  loss  of  one  by  reason  of  the 
insufficiency  of  one  of  the  carriages.  It  appeared,  that,  when  the  horses 
were  received,  a  ticket  was  given  to  the  plaintiff,  stating  the  amount 
paid  by  the  plaintiff  for  the  carriage  of  the  horses,  and  the  journey  they 
were  to  go,  and  having  at  the  bottom  the  following  memorandum  :  —  "  N 
B.  This  ticket  is  issued  subject  to  the  owner's  undertaking  all  risks  of  con- 
veyance whatsoever,  as  the  company  will  not  be  responsible  for  any  injury 
or  damage,  however  caused,  occurring  to  horses  or  carriages  while  trav- 
elling, or  in  loading  or  unloading."  It  was  held  that  the  terms  contained 
in  the  ticket  formed  a  part  of  the  contract  for  the  carriage  of  the  horses  ; 
and  that  the  alleged  duty  of  the  defendants  safely  and  securely  to  carry 
and  convey  the  horses,  did  not  arise  upon  that  contract.  But  Lord  C.  J. 
Denman  in  giving  judgment,  said  :  —  "It  may  be,  that,  notwithstanding  the 
terms  of  the  contract,  the  plaintiff  might  have  alleged,  that  it  was  the  duty 
of  the  defendants  to  have  furnished  proper  and  sufficient  carriages,  and 
that  the  loss  happened  from  a  breach  of  that  duty  ;  but  the  plaintiff  has 
not  so  declared,  but  has  alleged  a  (July  which  does  not  arise  upon  the  con- 
tract, as  it  appeared  in  evidence."  See  post,  §  430  -  451. 

1  Jeremy  on  Carr.  48 ;  Story  on  Bailm.  $  572. 

2  Helsby  ».  Mears,  5  B.  &  Cress.  R.  504 


284  LAW  OF  CAERIERS.  [CH.  VII. 

express  agreement  to  carry  a  package  of  extraordinary  value 
for  the  common  hire,  will  be  a  waiver  of  the  notice,  even  if 
made  by  one  partner  only,  if  it  be  within  the  scope  of  his 
authority.1  So  also  if  made  by  the  agent  or  servant  of  the 
carrier.  If,  before  sending  goods  by  a  carrier,  the  sender 
applies  at  his  wharf  to  know  at  what  price  certain  goods 
will  be  carried,  and  he  is  told  by  a  clerk  transacting  the 
business  there,  a  certain  sum  per  cent.,  and,  on  the  faith  of 
this,  he  sends  the  goods,  the  carrier  cannot  charge  more, 
although  it  be  proved,  that  the  carrier  had  previously  order- 
ed his  clerks  to  charge  all  goods  according  to  a  printed  book 
of  rates  in  which  a  greater  sum  is  set  down  for  goods  of  the 
sort  in  question.2  Again,  in  the  case  of  the  Grand  Junction 
Railway  Company,3  which  has  been  before  referred  to,4  who 
published  a  printed  notice,  which  was  affixed  over  the  door 
of  their  station,  to  the  effect  that  all  goods  received  after 
four  o'clock,  P.  M.,  would  not  be  forwarded  until  the  next 
working  day  ;  notwithstanding  this  notice,  inasmuch  as  the 
company  was  in  the  habit  of  forwarding  goods  for  the  plain- 
tiff delivered  at  the  station  after  four  o'clock,  and  the  com- 
pany's weigher,  on  a  particular  evening,  told  a  servant  of 
the  plaintiff  who  brought  goods  to  the  station  after  the  hour 
limited  by  the  notice,  that  there  was  then  "  plenty  of  time," 
and  the  goods  were  left  upon  the  faith  of  this  assurance  ;  it 
was  held,  that  there  was  evidence  to  go  to  a  jury  of  a 
special  contract  on  the  part  of  the  railway  company,  to  for- 
ward the  goods  (which  were  perishable)  the  same  even- 
ing. 


1  See  ante,  §  59.     If  the  carrier  is  told  what  is  the  value  of  the  goods, 
and  he  is  directed  to  charge  what  he  pleases,  and  he  chooses  to  charge 
only  the  ordinary  hire,  it  is  a  waiver  of  the   notice   as  to   the   goods. 
Evans  v.  Soule,  2  M.  &  Sel.  R.  1 ;  Wilson  v.  Freeman,  3  Campb.  R. 
527. 

2  Winkfield  v.  Packington,  2  C.  &  Pa.  R.  599. 

3  Palmer  v.  Grand  Junction  Railway  Co.  12  M.  &  Welsh.  R.  766. 

4  Ante,  §  136. 


CH.  VII.]      LIMITATION   OF  RESPONSIBILITY   BY  NOTICES.        285 

§  279.  It  appears,  at  one  period,  to  have  been  thought, 
that  the  mere  receipt  of  goods  whose  value  was  manifestly 
beyond  the  sum  in  the  notice,  without  any  extra  payment 
therefor,  was  a  waiver  of  the  notice.1  But  the  later  doctrine 
seems  to  exclude  any  presumption  founded  merely  upon  the 
knowledge  of  the  fact  above  stated,  and  requires  some 
auxiliary  circumstance  to  support  it.2 


1  Beck  v.  Evans,  16  East,  R.  244  ;  S.  C.  3  Campb.  R.  267. 

2  Story  Bailm.  §  572,  citing  Marsh  v.  Home,  5  B.  &  Cress.  R.  322. 


286  LAW  OF  CAERIERS.  [CH.  VIII. 


CHAPTER  VIII. 

OF   THE   TERMINATION    OF   THE    CARRIER'S    RESPONSIBILITY,    BY 
DELIVERY,   AND   WHAT   EXCUSES   A  NON-DELIVERY. 

§  280.  HAVING  considered  the  duty  of  a  common  carrier 
to  receive  goods  for  conveyance,  and  having  endeavored  to 
show  when,  in  the  sense  of  the  law,  they  are  delivered  to 
him,  and  that,  with  the  delivery  to  him,  his  extraordinary 
responsibility  commences ;  and  having  also  endeavored  to 
show  the  extent  of  that  responsibility,  as  imposed  by  the 
Common  Law,  and  as  it  may  be  limited,  modified,  or  varied 
by  special  agreement  and  by  general  notices,  the  subject 
which  next  claims  attention,  is  that  of  the  delivery  of  goods 
by  the  carrier,  by  which  his  duties  and  responsibilities  are 
terminated.  It  is  therefore'  proposed  now  to  consider,  1st, 
the  obligation  properly  to  deliver ;  and  2dly,  what  will  excuse 
a  non-delivery. 

§  281.  FIRST.  It  has  been  shown  to  be  an  implied  engage- 
ment on  the  part  of  every  undertaker  of  the  work  of  carry- 
ing, as  a  common  carrier,  to  proceed  without  deviation  from 
the  usual  and  ordinary  course,  to  the  place  of  delivery,1  or 
the  port  of  destination  ; 2  and  also  to  be  the  duty  of  the 
carrier,  if  the  goods  he  receives  for  conveyance  are  directed 
to  a  place  beyond  the  place  to  which  he  ordinarily  professes 
to  carry,  to  see  that  they  are  delivered  at  the  place  to  which 
they  are  directed.3  It  has  been  shown  likewise,  that  if,  by 
the  terms  of  the  bill  of  lading,  the  carrier  has  the  privilege 
of  re-shipping  the  goods  in  the  course  of  transportation,  he 

i  Ante,  $  164.  2  Ante,  %  175,  et  seq.  3  Ante,  §  95,  et  seq. 


CH.  VIII.]  DELIVEKY   BY.  287 

is  bound  for  their  safe  delivery  at  the  place  of  their  ultimate 
destination.1  But  if  a  carrier  is  instructed  by  his  employer, 
to  deliver  goods  on  board  of  another  vessel  for  a  continuance 
of  the  transportation,  and  the  goods  are  lost  on  board  such 
other  vessel,  he  is  not  responsible  if  he  has  safely  placed 
them  on  board  such  other  vessel,  as,  by  so  doing,  his  charac- 
ter, as  common  carrier,  has  ceased.2  Thus,  common  carriers, 
who  received  goods  to  transport  from  New  York  to  Troy, 
and,  at  the  latter  place,  transferred  them  pursuant  to  instruc- 
tions from  the  bailor,  on  board  a  canal  boat  bound  for  the 
north,  and  the  goods  were  lost,  by  the  upsetting  of  the  boat, 
it  was  held,  that  their  character,  as  common  carriers,  ceased 
at  Troy  ;  and  that  having  taken  proper  care  that  the  goods 
were  safely  put  on  board  the  canal  boat,  they  were  not 
responsible  for  the  loss.3 

§  282.  The  undertaking  of  a  common  carrier  to  transport 
the  goods  to  a  particular  destination,  necessarily  includes 
the  duty  of  delivering  them  in  safety  ;  and  his  obligation  is 
to  deliver  safely  at  all  events,  excepting  the  goods  be  lost  by 
the  act  of  God,  or  the  public  enemy.  It  is  not  enough,  that 
the  goods  be  carried  in  safety  to  the  place  of  delivery,  but 
the  carrier  must,  and  without  any  demand  upon  him,  deliver  ; 
and  he  is  not  entitled  to  freight  until  the  contract  for  a  com- 
plete delivery  is  performed.4  Hence,  it  has  been  held,  that 


1  Ante,  %  227. 

2  Abbott  on  Shipp.  465,  (5th  Am.  edit.) ;  Strong  «.  Natally,  4  Bos.  & 
Pull.  R.  16. 

3  Ackley  v.  Kellogg,  8  Cow.  (N.  Y.)  R.  223.     Where  the  master  of 
a  vessel  is  directed  to  transship  or  deliver  on  board  another  vessel,  a  deliv- 
ery on  board  such  other  vessel,  is  the  termination  of  the  duty  of  a  common 
carrier.     The  master,  at  the  end  of  the  transit,  is  only  a  forwarder.     Van 
Stantwood  v.  St.  John,  6  Hill,  (N.  Y.)  R.  158,  reversing  the  decision  of 
the  Supreme  Court  of  New  York,  in  25  Wend.  R.  661,  and  ante,  §  95. 
As  to  forwarding  merchants,  see  ante,  §  75. 

<  Forward  v.  Pittard,  IT.  R.  27  ;  Garside  v.  Trent  Navigation  Co. 
4  Ib.  581 ;  Hyde  v.  Trent  and  Mersey  Navigation  Co.  5  Ib.  389  ;  Harris 


288  LAW   OF   CARRIERS.  [CH.  VIII. 

if  a  common  carrier  on  a  canal,  uses  the  tackel  or  machinery 
of  a  third  person  in  hoisting  the  goods  from  his  boat,  and  the 
machinery  breaks,  and  the  goods  are  thereby  injured,  he  is 
responsible  for  the  damage ;  for,  although  the  machinery 
does  not  belong  to  him,  it  is  his  pro  hac  vice,  and  so  as  to 
render  him  answerable  for  its  sufficiency.1  But  if  the  ware- 
houseman has  fairly  taken  the  goods  into  his  own  custody, 
the  moment  he  applies  his  tackle  to  them,  from  that  moment 
the  carrier's  liability  is  determined.2  It  appears,  therefore, 


v.  Rand,  4  N.  Hamp.  R.  555;  S.  C.  Ib.  259.  When  the  responsibility 
has  begun,  it  continues,  until  there  has  been  a  due  delivery  by  the  carrier, 
or  he  has  discharged  hicnself  of  the  custody  of  the  goods  in  his  character 
of  common  carrier.  2  Kent,  Comm.  604,  (6th  edit.)  ;  Eagle  v.  White, 
6  Whart.  (Penn.)  R.  505  ;  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  R.  305  ; 
Ludwig  v.  Meyre,  5  Watts  &  S.  (Penn.)  R.  435  ;  Erskine  v.  Thames, 
6  Mississip.  R.  371  ;  Carter  v.  Flagg,  13  Shep.  (Me.)  R.  181.  It  is  no 
excuse  for  non-delivery  for  the  owners  of  a  steamboat  who  are  common 
carriers,  for  the  loss  of  a  shipment  on  board  of  her  by  means  of  collision 
with  another  vessel,  and  without  any  fault  imputable  to  either ;  there  being 
no  express  stipulation  of  any  kind,  between  the  owner  of  the  goods  and 
the  owners  of  the  boat,  that  they  should  be  exempted  from  the  "perils  of 
the  sea."  Plaisted'v.  Steam  Navigation  Co.  14  Shep.  (Me.)  R.  132. 
And  see  Graff  v.  Bloomer,  9  Barr.  (Penn.)  R.  114.  In  Harrell  v.  Owens, 
in  North  Carolina,  1  Dev.  &  Bat.  R.  273,  it  was  held,  that  where  the 
master  of  a  vessel  undertakes  to  deliver  articles  on  board  of  his  vessel,  on 
freight,  at  a  certain  place,  he  cannot  allege  ignorance,  or  any  excuse 
arising  from  human  fault  or  human  weakness,  as  a  defence  for  violating 
his  engagement ;  that  the  true  question  is  not  one  of  actual  blame,  but  of 
legal  obligation.  Nothing  short  of  the  act  of  God  or  of  the  public  enemy 
will  excuse,  in  a  common  carrier,  a  neglect  to  deliver.  See  also  Griffith  v. 
Ingledew,  6  S.  &  Rawle,  (Penn.)  R.  429. 

1  De  Mott  v.  Laraway,  14  Wend.  (N.  Y.)  R.  225. 

8  Thomas  v.  Day,  4  Esp.  R.  462.  Where  a  carrier  (a  master  of  a 
vessel,  for  example)  has  once  fairly  delivered  goods  to  the  consignee,  his 
duty  is  fulfilled,  and  his  responsibility  ceases  ;  and  this  ought  to  apprise 
the  consignee,  that  every  instant  of  the  time  he  allows  to  elapse  after  such 
delivery,  without  objection  or  complaint,  carries  a  presumption  with  it  in 
favor  of  the  master,  that  the  goods  were  safely  delivered,  or  that  no  blame 
is  to  be  imputed  to  him  ;  for  it  is  inconsistent  with  his  duties  and  obliga- 
tions, and  would  be  injurions  to  commerce,  that  his  responsibility  should 


CH.   VHI.]  DELIVERY  BY.  289 

to  be  of  importance  to  consider  what  is  requisite  to  constitute 
a  competent  delivery,  or  such  a  delivery  as  will  determine  the 
transit  and  dissolve  the  carrier's  liability.  This  in  a  great 
measure,  is  left  to  the  jury  to  determine.  In  a  trial  of  an 
action  to  recover  damages  for  an  injury  to  the  plaintiffs  gon- 
dola, occasioned  by  the  negligence  of  the  defendant,  to  whom 
it  was  bailed,  in  suffering  it  to  be  frozen  in  the  ice,  where  the 
defence  was  that  it  had  been  delivered  up  to  the  plaintiff 
before  any  injury  to  it  had  taken  place  ;  it  was  held  proper 
to  instruct  the  jury,  that  the  testimony  of  certain  witnesses, 
if  believed,  would  prove  that  the  gondola  had  been  so  deliv- 
ered up  to  the  plaintiff.1 

§  283.  The  carrier  is  bound  in  all  cases  to  make  a  proper 
delivery  with  reasonable  expedition,  if  no  particular  time  be 
fixed  upon  ;  for  the  duty  to  deliver  within  a  reasonable  time, 
is  a  term  ingrafted,  by  legal  implication,  upon  a  promise  or 
duty  to  carry  generally.2  A  receipt  given  for  merchandise 

be  continued  for  months  and  years  after  such  delivery.  Therefore,  where 
several  packages  of  goods  were  shipped  at  London  to  a  merchant  in 
Quebec,  where,  upon  the  arrival  of  the  vessel,  and  after  delivery  of  the 
packages,  some  of  the  goods  were  missing  from  one  of  the  packages  ;  it 
was  held,  that  no  notice  having  been  given  until  several  months  afterwards, 
the  master  was  not  responsible  for  the  deficiency.  The  Court  said,  that 
although  no  decision  of  the  English  Courts  had  been  adduced  upon  this 
question,  yet  as  the  general  principles  of  law  in  all  commercial  countries, 
in  relation  to  the  duties  of  masters  of  trading  vessels,  are  drawn  from  the 
same  source  as  the  French  law  which  they  quoted,  have  the  same  objects 
in  view,  and  are  founded  in  reason  and  justice,  they  must  consider  them  as 
applying  strongly  to  the  present  case.  Stuart,  (Low.  Canada)  R.  575 ; 
and  see  Pardessus,  No.  730 ;  2  Boulay  Paty,  p.  325. 

i  Alley  v.  Blen,  15  Shep.  (Me.)  R.  308. 

a  Story  on  Bailm.  §  545  a,  (4th  edit.)  ;  Boyle  ».  M'Laughlin,  4  H.  & 
Johns.  (Md.)  R.  291  ;  Hand  v.  Baynes,  4  Whart.  (Penn.)  R.  204,  and 
cited  ante,  Chap.  VI.  §  177 ;  Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  R. 
215;  Eagle  v.  White,  6  Whart.  (Penn.)  R.  505;  Hill  v.  Humphreys, 
5  Watts  &  S.  (Penn.)  R.  123  ;  Wooley  t>.  Riddlelien,  6  Scott,  New  R. 
206  ;  Wallace  v.  Vigus,  4  Blackf.  (Ind.)  R.  261  ;  Ludwig  v.  Meyre, 
5  Watts  &  S.  (Penn.)  R.  435  ;  Erskine  v.  Thames,  6  Mississip.  R.  371. 
25 


290  LAW   OF  CARKIEBS.  [CH.  VIII. 

at  Baltimore,  with  a  promise  to  deliver  the  same  to  a  person 
in  Philadelphia,  and  to  be  carried  by  the  Chesapeake  and 
Delaware  canal,  it  was  held,  in  Hand  v.  Baynes,1  was  an 
engagement  to  deliver  in  a  reasonable  time ;  and  what 
would  be  a  reasonable  time,  the  Court  also  held,  must  be 
determined  under  all  the  circumstances,  with  a  view  to  the 
condition  of  the  canal,  the  season  of  the  year,  the  state  of 
the  weather,  and  such  other  matters  as  might  enter  into  the 
question. 

§  284.  A  declaration  in  case,  alleged,  that  the  defendants 
were  common  carriers,  and  that  the  plaintiff  delivered  to 
them  certain  goods  to  be  carried  for  him  from  London  to 
Birmingham,  and  there  to  be  delivered  to  the  plaintiff,  for 
reasonable  hire  or  reward ;  and  then  averred,  that  it  was 
the  duty  of  the  defendants  safely  and  securely  to  carry  and 
to  deliver  the  said  goods  ;  but  although  that  a  reasonable 
time  for  carrying  and  delivering  the  goods,  had  long  since 
elapsed,  yet  the  defendants  neglecting  their  duty  in  that 
behalf,  did  not  deliver  the  goods  to  the  plaintiff,  but  that 
the  goods,  by  the  negligence  of  the  defendants,  were  wholly 
lost  to  the  plaintiff.  At  the  trial,  it  appeared  that  the  parcel 
in  question  had  been  delivered  to  the  defendants  in  London, 
on  the  8th  of  August,  addressed  to  the  plaintiff  at  Birming- 
ham, where  it  ought  to  have  arrived  on  the  10th,  but  did 
not  arrive  until  the  3d  or  4th  of  September.  It  was  held, 
upon  this  evidence,  that  the  plaintiff  was  entitled  to  recover.2 
Again,  the  plaintiff  sent  certain  goods  by  the  defendants 
(carriers)  to  be  delivered  in  Bedford  on  a  certain  day,  in 
order  to  be  ready  for  the  market  on  Saturday,  but  did  not 
give  notice  that  they  were  left  for  that  purpose.  On  that  day 
the  plaintiffs  clerk  proceeded  there,  and  owing  to  the  non- 
delivery till  the  Monday  following,  he  removed  them  to 
another  place  for  sale.  The  carrier  was  held  liable  for  the 

1  Hand  v.  Haynes,  4  Whart.  (Penn.)  R.  204. 
a  Raphael  v.  Pickford,  6  Scott,  New  R.  478. 


CH.  VIII.]  DELIVERY   BY.  291 

non-delivery  of  the  goods  within  a  reasonable  time  ;  and 
the  expenses  so  incurred,  it  was  also  held,  might  be  given  by 
the  jury  as  damages.1 

§  285.  Where  an  action  was  brought  in  which  it  was 
alleged,  that  the  defendant  undertook,  for  compensation,  to 
convey  an  account  delivered  to  him,  from  W.  to  H.,  and  to 
be  safely  delivered  to  one  A.  R.  ;  and  that  the  defendant, 
having  so  long  delayed  to  deliver  the  same,  the  debt  was 
barred  by  the  statute  of  limitations,  and  thus  wholly  lost ;  it 
was  held,  that  the  plaintiff  was  entitled  to  recover.2 

§  286.  It  is  no  excuse  for  an  omission  to  deliver  money 
delivered  to  a  common  carrier  to  be  by  him  delivered  to  a 
bank,  that  he  went  to  the  bank  and  found  it  shut.  Thus,  in 
an  action  of  assumpsit  against  the  defendant  as  a  common 
carrier,  for  a  breach  of  his  undertaking,  in  that  capacity,  to 
convey  a  package  of  money  belonging  to  the  plaintiff  in 
Connecticut,  to  Poughkeepsie  in  the  Stale  of  New  York,  and 
there  to  deliver  it  to  a  bank  in  that  village  ;  and  it  appeared, 
that  when  the  defendant  arrived  at  Poughkeepsie,  the  bank 
was  shut ;  that  he  went  twice  to  the  house  of  the  cashier, 
and  not  finding  him  at  home,  brought  back  the  money,  and 
offered  it  to  the  plaintiff,  who  declined  to  accept  it;  and 
that  the  defendant  then  refused  to  be  further  responsible  for 
any  loss  or  accident;  it  was  held,  that  in  the  absence  of  any 
special  contract,  (none  was  proved  in  the  case)  these  facts 
did  not  constitute  a  legal  excuse  to  the  defendant  for  the 
non-performance  of  his  undertaking.  That  the  bank  was 
shut  when  the  carrier  went  there,  could  amount  to  nothing, 
unless  it  further  appeared,  that  he  went  there  at  a  proper 
time,  during  the  ordinary  business  hours  ;  and  even  then, 
the  Court  could  not  say,  as  a  matter  of  law,  that  this  would 
be  a  legal  excuse.  That  there  may  be  circumstances  which 

1  Black  v.  Baxendale,  1  Exch.  R.  410  ;  17  Law  Journ.  50. 

2  Favor  v.  Philbrick,  5  N.  Hamp.  R.  357. 


292  LAW   OF   CARRIERS.  [CH.  VIII. 

would  excuse  a  carrier  from  the  delivery  of  a  package  of 
money  to  a  bank  to  which  he  has  undertaken  to  convey  and 
deliver  it,  is  doubtless  true  ;  it  would  depend  upon  the  degree 
of  diligence  which  the  carrier  used,  to  let  the  officers  of  the 
bank  know  that  he  had  a  package  to  deliver  there.1  The 
proper  time  for  a  carrrier  of  specie  to  deliver  it  to  a  bank  to 
which  it  is  consigned,  is  not  limited  to  banking  hours  — 
unless  such  is  the  special  contract  or  the  implied  usage  of 
the  place  ;  and  an  offer  to  deliver  it  at  any  time  during  the 
usual  hours  of  business  —  reasonable  regard  being  had  to  its 
safety,  and  the  convenience  of  the  consignee  —  is  as  good  as 
one  made  in  banking  hours.2 

§  287.  If  in  the  opinion  of  the  jury,  it  is  proved,  that 
goods  are  tendered  by  the  carrier  to  the  consignee  late  in  the 
day,  after  the  termination  of  the  hours  of  business,  and 
when  the  consignee  has  dismissed  his  hands,  and  is  thus 
incapable  of  receiving  and  putting  away  the  goods,  the 
tender  of  delivery  is  then  unreasonable  as  to  time,  and  the 
consignee  is  guilty  of  no  fault  or  laches  in  declining  to 
receive  them.  Therefore,  the  duty  of  the  carrier,  under 
such  circumstances,  is  to  keep  the  goods  still  in  custody, 
and  he  continues  to  hold  them  under  all  his  responsibilities 
as  carrier.3 

§  288.  In  Eagle  v.  "White,  in  Pennsylvania,4  the  defend- 
ants, who  were  common  carriers  on  a  railroad  from  Phila- 
delphia to  Columbia,  undertook  to  carry  certain  boxes  of 
goods  belonging  to  the  plaintiff  from  Philadelphia  to  Co- 
lumbia. The  cars  arrived  at  the  latter  place  about  sun- 
down on  a  Saturday  evening,  and  by  direction  of  the  plain- 
tiff, were  placed  on  a  sideling,  that  is,  a  side  track.  The 

1  Merwin  v.  Butler,  17  Conn.  R.  138. 

2  Young  v.  Smith,  3  Dana,  (Ken.)  R.  92. 

3  Hill  v.  Humphreys,  5  Watts  &  S.  (Penn.)  R.  123. 

4  Eagle  v.  White,  6  Whart.  (Penn.)  R.  505. 


CH.  Vin.]  DELIVERY  BY.  293 

plaintiff  declined  receiving  the  goods  that  evening,  on  the 
ground  that  it  was  too  late ;  whereupon,  the  agent  of  the 
defendants  left  the  cars  on  the  sideling,  taking  with  him  the 
keys  of  the  padlocks  with  which  the  cars  were  fastened,  and 
promised  to  return  on  Monday  morning.  The  cars  remained 
in  this  situation  until  Monday  morning,  when  they  were 
opened  by  the  plaintiff  by  means  of  a  key  which  fitted  the 
lock  ;  and,  on  examination,  it  was  discovered,  that  one  of 
the  boxes  had  been  opened,  and  the  contents  carried  away. 
It  was  held,  that  the  defendants  were  liable  to  the  plaintiff 
for  the  value  of  the  goods  lost.  Rogers,  J.,  who  gave  the 
opinion  of  the  Court,  was  of  opinion,  that  if  the  lender 
was  wanting,  in  any  one  of  the  essential  requisites  of  a 
proper  time,  a  proper  manner,  and  a  proper  place,  the  respon- 
sibility as  carrier  still  continues.  Although  his  strict  ac- 
countability of  carrier  may  cease,  said  the  learned  Judge, 
he  becomes  a  bailee,  and  as  such,  must  take  ordinary 
care  of  the  goods.  But,  in  this  case,  said  he,  neither 
party  supposed  the  goods  were  delivered,  or  that  the  re- 
sponsibility had  ceased.  But  from  this  opinion,  Huston,  J. 
dissented. 

§  289.  But  if,  by  any  accident  or  misfortune,  not  amount- 
ing to  the  act  of  God  or  the  act  of  the  public  enemy,  the 
transportation  of  the  goods  is  obstructed  and  delayed,  the 
carrier  will  not  be  answerable  for  the  delay  so  occasioned, 
if  he  has  used  a  reasonable  degree  of  exertion  and  dili- 
gence in  the  transportation.  A  temporary  unavoidable  ob- 
struction only  suspends,  and  does  not  avoid,  the  contract.1 

1  Hadley  v.  Clarke,  8  T.  R.  259.  In  respect  to  the  time  of  the  delivery 
of  goods,  a  common  carrier  is  responsible  only  for  the  exertion  of  due 
diligence,  and  he  may  excuse  delay  in  delivery  by  accident  or  misfortune, 
although  not  inevitable.  It  is  enough,  that  he  uses  proper  endeavors  to 
prevent  delay.  In  other  words,  the  principle  upon  which  the  extraordi- 
nary responsibility  of  common  carriers  is  founded,  does  not  require  that 
that  responsibility  should  be  extended  to  the  time  occupied  in  the  trans- 
portation ;  the  danger  of  robbery,  or  collusion  and  fraud,  has  no  application 
in  such  case.  Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  R.  215. 
25* 


294  LAW  OF   CARRIERS.  [CH.  VIII. 

A  common  carrier  on  a  canal  may  be  prevented  by  reason 
of  ice  from  accomplishing,  without  serious  detention,  the 
whole  voyage  ;  and  in  such  event,  he  is  only  bound  to  de- 
liver at  the  place  to  which  he  undertook  to  transport  the 
goods,  on  the  canal  again  becoming  navigable.1  The  freez- 
ing of  the  canal  may  indeed,  as  has  already,  appeared,2  be 
deemed  the  act  of  God  ;  but  suppose  the  canal  boat  has 
been  retarded  or  obstructed  in  its  voyage  by  reason  of  any 
accident  or  misfortune  not  amounting  to  an  act  of  God,  as 
by  the  disordered  condition  of  some  lock,  in  such  case,  the 
carrier  will  not  be  liable  for  any  damage  occasioned  to  the 
shipper  thereby,  if  the  goods  finally  arrive  in  safety,  unless 
he  has  been  guilty  of  negligence.3 

§  290.  The  keeper  or  owner  of  a  public  ferry  is  bound  to 
transport  goods  across  the  stream  after  night,  and  a  failure 
to  do  so,  will,  in  Alabama,  subject  him  to  an  action,  under 
the  statute,  without  suit  upon  the  bond ;  but  yet,  in  such 
actions,  the  defendant  may  show  the  prevalence  of  high 
winds  rendering  it  dangerous ;  or,  that  the  application  was 
after  the  usual  bed  time,  and  that  the  residence  was  at  some 
distance  from  the  ferry.4 

§  291.  So  the  carrier  will  be  excused  for  his  delay  in  de- 
livery, if  the  consignee  is  dead  or  absent,  or  has  refused  to 
receive  the  goods,  though,  in  those  cases,  he  is  not  justified 
in  abandoning  the  goods,  as  by  leaving  them  unprotected 
on  a  wharf;  his  duty,  on  the  contrary,  being  to  secure  them 
for  the  owner.5  Although  in  Fisk  v.  Newton,6  the  general 


1  Parsons  v.  Hardy,  ub.  sup. 

2  Ante,  6  160. 

3  Story  on  Bailm.  $  545  a,  (4th  edit.) ;  and  see  Evans  v.  Hutton,  5 
Scott,  New  R.  670. 

*  Pate  v.  Henry,  5  St.  &  P.  (Ala.)  R.  101. 

5  Ostrander  v.  Brown,  15  Johns.  (N.  Y.)  R.  39. 

6  Fisk  v.  Newton,  1  Denio,  (N.  Y.)  R.  45. 


CH.  VIZI.]  DELIVERY  BY,  295 

rule  is  recognized,  that  a  common  carrier  is  bound  season- 
ably to  deliver  the  goods  intrusted  to  him  to  carry,  person- 
ally to  the  consignee,  at  the  place  of  delivery,  yet  it  was 
held,  that  where  goods  are  safely  conveyed  to  their  place  of 
destination,  and  the  consignee  is  dead,  absent,  or  refuses  to 
receive,  or  is  not  known,  and  cannot  after  reasonable  efforts 
be  found,  the  carrier  may  discharge  himself  from  further 
liability,  by  placing  the  goods  in  store  with  some  responsible 
third  person  in  that  business,  at  that  place,  for  and  on  ac- 
count of  the  owner  ;  the  storehouse-keeper,  in  such  event, 
becoming  the  bailee  of  the  owner  of  the  property.  In  this 
case,  the  consignee  of  butter,  sent  from  Albany  to  New  York 
by  a  freight  barge,  was  a  clerk  having  no  place  of  business 
of  his  own,  and  whose  name  was  not  in  the  city  directory, 
and  who  was  not  known  to  the  carrier,  and,  after  reasonable 
inquiries  by  the  carrier's  agent,  could  not  be  found  ;  and  it 
was  held,  that  the  carrier  discharged  himself  from  further 
liability,  by  depositing  the  property  with  a  storehouse-keeper 
then  in  good  credit,  for  the  owner,  and  taking  his  receipt  for 
the  same,  according  to  the  usual  course  of  business  in  that 
trade  ;  though  the  butler  was  subsequently  sold  by  the 
storehouse-keeper,  and  the  proceeds  lost  to  the  owner  by  his 
failure. 

§  292.  "When  a  ship-owner  or  master  of  a  ship  cannot 
without  delay,  deliver  the  goods,  from  their  being  unlaw- 
fully detained  by  revenue  officers,  his  liability  nevertheless 
continues,  inasmuch  as  he  has  a  remedy  over  against  the 
officers  for  the  illegal  detention.1 

§  293.  If  a  due  delivery  of  goods  is  interrupted  by  per- 
sons invested  with  legal  authority  to  prohibit  the  landing 
and  delivery  at  the  place  at  which  they  are  destined,  such 
legal  authority  must  be  fully  disclosed  in  the  defendants' 


Gosling  v.  Higgins,  1  Campb.  R.  451. 


296  LAW  OF   CARRIERS.  [CH.  VIII. 

pleading.  Thus,  to  a  declaration  upon  a  contract  to  carry 
goods  from  Liverpool  to  Canton,  and  there  to  deliver  them, 
(all  and  every  dangers  and  accidents  of  the  seas  and  naviga- 
tion, of  whatever  nature  or  kind  soever,  excepted,)  to  the 
plaintiff's  agents ;  the  defendants  pleaded,  that  they  caused 
the  ship  to  sail  to  Canton,  and  that  she  with  her  goods  on 
board  arrived  near  to  the  port  of  Canton  ;  that  then  and 
there  certain  persons,  authorized  officers  of  the  British  gov- 
ernment, and  then  and  there  exercising  the  power  of  her 
Majesty's  government,  to  wit,  one  C.  Elliott,  then  being  the 
chief  superintendent  of  the  trade  of  her  Majesty's  subjects 
to  and  from  the  dominions  of  the  emperor  of  China,  accord- 
ing to  the  form  of  the  statute  in  that  case  made  and  provided, 
and  one  Smith,  then  being  captain  of  her  said  Majesty's  ship 
the  Volage,  then  being  the  commanding  officer  of  her  said 
Majesty's  naval  forces  there,  did,  for  divers  good  and  suffi- 
cient and  lawful  causes  and  reasons,  them  in  that  behalf 
moving,  and  not  for  any  wrongful,  negligent,  unlawful,  or 
improper  act  or  behavior  of  the  defendants,  their  master  or 
mariners,  done  or  committed,  forcibly  interrupt  the  said  ship, 
being  a  British  ship,  from  further  proceeding  on  its  said  voy- 
age to  Canton  aforesaid  ;  and  did,  by  virtue  of  the  powers 
and  authorities  to  them  in  that  behalf  committed,  and  by 
means  of  her  said  Majesty's  naval  forces  then  and  there 
being  under  their  command,  and  by  the  force  and  duress 
thereof,  forcibly  constrain  and  compel  the  said  ship,  and 
continually  had  constrained  and  compelled  the  same  not  to 
proceed  to  Canton  aforesaid,  and  thereby  prevented,  and 
thenceforth  always  hitherto  had  prevented,  and  still  did 
prevent,  the  defendants  from  delivering  the  goods  at  Canton. 
On  special  demurrer  to  this  plea,  it  was  held  bad  for  not 
sufficiently  disclosing,  that  Elliot  and  Smith,  as  chief  super- 
intendent and  commander  of  the  naval  forces  in  the  Chinese 
seas  respectively,  had  legal  authority,  by  statute  or  otherwise, 
to  act  in  the  manner  alleged.1  But  this  case  has  been  refer- 

1  Evans  v.  Hutton,  5  Scott,  New  R.  670. 


CH.  VIII.]  DELIVERY  BY.  297 

red  to  in  support  of  the  position,  that  if  an  agreement  be 
made  to  do  an  act  lawful  at  the  time  of  such  agreement,  but 
afterwards,  and  before  the  performance  of  the  act,  the  per- 
formance is  rendered  unlawful  by  the  government  of  the 
country,  the  agreement  is  absolutely  dissolved.1 

• 

§  294.  But  the  principles  of  law  in  respect  to  the  obliga- 
tion of  a  carrier  to  deliver  goods  in  a  reasonable  time,  de- 
pending upon  circumstances,  though  they  apply,  as  in  the 
foregoing  cases,  to  implied  contracts,  will  not  apply  to  an 
express  contract  to  deliver  in  a  prescribed  time.  In  the  latter 
case  no  temporary  obstruction,  or  even  the  absolute  impossi- 
bility of  complying  with  the  engagement,  will  be  a  defence 
to  an  action  for  failure  in  performing  the  contract.2  There 
is  a  distinction  founded  in  reason  and  authority,  which  is, 
that  when  the  law  creates  a  duty  or  charge,  and  the  party  is 
disabled  to  perform  it,  without  any  default  in  him,  and  has 
no  remedy  over,  then  the  law  will  excuse  him  ;  but  when 
the  party,  by  his  own  contract,  creates  a  duty  or  charge  upon 
himself,  he  is  bound  to  make  it  good,  notwithstanding  any 
accident  or  delay,  by  inevitable  necessity,  because  he  might 
have  provided  against  it  by  his  contract.3 


1  Abbott  on  Shipp.  704,  (5th  Am.  edit.) 

2  Ante,  §  37,  59. 

3  Per  Rogers,  J.,  in  delivering  the  opinion  of  the  Court  in  Hand  v. 
Baynes,  4  Whart.  (Penn.)  R.  214  ;  Aleyn,  R.  27  ;  Brecknock  and  Aber- 
gavenny  Canal  Navigation  v.  Pritchard,  8  T.  R.  750  ;  Hadley  ».  Clarke, 
8  T.  R.  259.     There  are  also  authorities  on  the  subject  as  between  insur- 
ers and  insured.     In  Shubrick  v.  Salmon,  3  Burr.  R.  1637,  Lord  Mans- 
field takes  the  distinction  between  implied  covenants,  by  operation  of  law, 
and  express  covenants,  that  is,  that  express  covenants  are  treated  strictly. 
See  also  De  Hahn  v.  Hartley,  1  T.  R.  343.     It  has  also  been  ruled,  that 
if  a  ship  warranted  to  sail  on  or  before  a  certain  day,  be  prevented  from 
sailing  on  that  day,  by  an  embargo,  the  warranty  is  not  complied  with. 
Home  v.  Whitmore,  2  Cowp.  R.  784  ;  Paxson  «.  Watson,  2  Cowp.  R. 
785.     Notwithstanding  any  custom  to  the  contrary,  if  the  carrier  specially 
undertakes  to  deliver,  he  is  chargeable.     Wardell  v.  Mourillyan,  2  Esp. 
R.  693. 


298  LAW    OF  CARRIERS.  [CH.  VIII. 

§  295.  When  the  carriage  is  by  land,  and  in  the  absence 
of  any  established  usage,  or  any  special  contract  to  the  con- 
trary, the  goods  must  be  carried  to  the  residence  of  the 
consignee ; 1  so  that  coach  proprietors,  for  example,  are  not 
released  from  responsibility  by  having  the  goods  left  at  the 
coach-office,  or  at  a#  inn,  at  which  the  coach  usually  stops.2 
If  the  carrier  tenders  the  goods  at  the  residence  of  the  con- 
signee, and  is  ready  to  deliver  them  on  receiving  payment 
of  his  hire,  he  has  fulfilled  his  contract  as  a  carrier  ;  and  if 
the  hire  is  not  paid,  he  is  not  bound  to  part  with  the  posses- 
sion of  the  goods ;  but  he  is  authorized  to  take  them  back  to 
his  warehouse,  or  place  of  business,  and  he  holds  them 
thenceforward  not  as  a  common  carrier,3  but  as  a  private 
bailee  for  hire  ;  4  or,  (if  he  is  not  to  charge  warehouse  rent,) 
as  a  gratuitous  bailee.5 

§  296.  In  Hyde  v.  Trent  and  Mersey  Navigation  Com- 
pany,6 the  subject  was  considerably  discussed,  whether  the 
carrier  was  bound  to  deliver  to  the  individual  at  his  house,  or 
whether  he  discharged  himself  from  liability  by  delivery  to 
a  porter,  at  the  inn  in  the  place  of  destination.  The  opinion 
of  Lord  Kenyon  was,  that  the  carrier  was  thus  discharged, 
but  the  three  other  Judges,  Buller,  Ashhurst,  and  Grose, 
were  of  opinion,  that  the  risk  of  the  carrier  continued  until 
a  personal  delivery  at  the  house  or  place  of  deposit  of  the 
consignee.  It  was  said  by  Buller,  J.  :  "  According  to  the 
argument,  from  the  inconvenience,  that  carriers  are  not 


1  See  2  Kent,  Comm.  604. 

2  Add.  on  Contr.  810.     Leaving  at  the  stage-office  can  only  be  author- 
ized, in  the  absence   of  express  permission,  by  long  established  and  a 
generally  well  known  usage.     Gibson  v.  Culver,  17  Wend.  (N.  Y.)  R. 
305. 

3  Storrs  v.  Crowley,  1  M'Clel.  &  You.  R.  136 ;  2  Kent,  Comm.  604. 

4  As  to  private  bailees  for  hire,  see  ante.  Chap.  III. 

5  As  to  gratuitous  bailees,  see  ante,  Chap.  II.,  and  Young  v.  Smith, 
3  Dana,  (Ken.)  R.  91. 

6  Hyde  v.  Trent  and  Mersey  Navigation  Company,  5  T.  R.  389. 


CH.  VIII.]  DELIVERY  BY.  299 

bound  to  deliver  goods,  I  think  the  same  argument  tends 
to  establish  a  much  greater  inconvenience,  the  necessity  of 
three  contracts,  in  all  cases  where  the  goods  are  sent  by  a 
coach  or  wagon  ;  one  with  the  carrier,  another  with  the  inn- 
keeper, and  a  third  with  the  porter.  But,  in  fact,  there  is 
but  one  contract :  there  is  nothing  like  any  contract,  or  even 
communication,  between  any  other  person  than  the  owner 
of  the  goods  and  the  carrier  :  the  carrier  is  bound  to  deliver 
the  goods,  and  the  person  who  actually  delivers  them  acts 
as  the  servant  of  the  carrier.  If  the  innkeeper  has  some 
interest  in  the  concern,  then  he  is  liable  as  a  carrier.  It  has 
been  said  too,  that  the  place  of  a  porter  is  valuable,  and  the 
subject  of  a  purchase  :  but  who  sells  it  ?  Not  the  person  to 
whom  the  goods  are  sent,  but  the  carrier,  or  the  innkeeper, 
whom  I  consider  as  the  same  person.  If  the  innkeeper  has 
no  share  in  the  profits,  then  he  is  the  servant  of  the  carrier, 
as  well  as  the'porter.  Therefore,  whether  there  be  the  inn- 
keeper and  the  porter,  or  the  porter  only,  the  carrier  is  liable 
in  all  cases  where  the  goods  are  lost,  after  they  get  into  the 
hands  of  the  innkeeper  or  porter,  because  they  are  delivered 
to  those  persons  with  the  consent,  and  as  the  servants,  of  the 
carrier.  The  different  proprietors  may  divide  the  profits 
among  themselves,  in  any  way  they  choose :  but  they  can- 
not, by  their  own  agreement  with  each  other,  exonerate 
themselves  from  their  liability  to  the  owner  of  the  goods. 
They  may  fill  the  two  different  characters  of  warehouse- 
men and  carriers,  at  different  times,  but  I  deny  that  they 
can  be  both  warehousemen  and  carriers  at  the  same  instant. 
If  the  undertaking  was  to  carry  and  deliver,  then  the  goods 
remain  in  their  custody,  as  carriers,  the  whole  time."  1 

§  297.  On  more  recent  occasions,  in  England,  the  opinions 
of  other  distinguished  Judges  have  settled  down  in  favor  of 
the  doctrine  as  above  land  down  by  Mr.  J.  Buller,  and  con- 

1  And  see  Golden  v.  Manning,  3  Wils.  R.  429,  in  which  a  delivery  to 
a  porter  was  held  to  be  no  delivery  to  the  consignee. 


300  LAW  OP   CARRIBKS.  [CH.  VHI. 

curred  in  by  Ashhurst  and  Grose,  Js.  ; l  and  an  actual  de- 
livery to  the  proper  person  is  now  generally  conceded  to  be 
the  duty  of  the  carrier.2  Cowen,  J.,  in  delivering  the  opin- 
ion of  the  Court  in  Gibson  v.  Culver,3  considers  it  well 
settled,  that  prima  facie  the  carrier  is  under  obligation  to 
deliver  the  goods  to  the  consignee  personally."  In  Eagle  v. 
White,  in  Pennsylvania,4  the  general  rule,  unless  modified 
by  usage  or  special  contract,  on  the  subject  of  delivery  of 
goods  by  a  carrier,  is  considered  to  be,  that  in  the  contract 
for  carriage,  the  common  carrier  engages  to  deliver  the 
goods  intrusted  to  him  into  the  actual  custody  of  the  person 
for  whom  they  are  intended,  at  his  residence  or  place  of 
business ;  and  that,  in  no  other  way  can  he  discharge  him- 
self of  his  responsibility,  as  a  common  carrier,  except  by 
proving,  that  he  has  performed  such  engagement,  or  has 
been  excused  from  the  performance  of  it,  or  has  been  re- 
leased from  it  by  the  act  of  God,  &c.5  AYid  indeed,  it 
has  been  considered  to  have  been  repeatedly  ruled,  that  de- 
livery at  a  point  or  place  in  close  proximity  with  the  place 
stipulated,  will  not  relieve  the  carrier  from  his  responsibil- 
ity as  such  ;  and  that  mere  propinquity  of  delivery  is  no 
delivery.6 

§  298.  It  is  important  for  the  master  of  a  vessel  to  recol- 
lect that  his  engagement  is  to  deliver  the  goods  to  the  persons 


1  Storrs  ».  Crowley,  ub.  sup. ;  Stephenson  v.  Hart,  4  Bing.  R.  476  ; 
Garnett  v.  Willan,  5  B.  &  Aid.  R.  356  j  Bodenham  v.  Bennett,  4  Price, 
R.  34  ;  Duff  v.  Budd,  3  Brod.  &  Bing.  R.  177  ;  Birkett  v.  Willan,  2  B. 
&  Aid.  R.  356. 

2  2  Kent,  Comm.  604  ;  Story  on  Bailm.  $  543. 

3  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  R.  305. 

4  Eagle  v.  White,  6  Whart.  (Penn.)  R.  505. 

5  See  also  Moore  v.  Sheredine,  2  H.  &  M'Hen.  (Md.)  R.  453  ;  Chick- 
ering  v.  Fowler,  4  Pick.   (Mass.)   R.  453 ;  Young  v.  Smith,  3  Dana, 
(Ken.)  R.  92. 

6  Graff  v.  Bloomer,  9  Barr.   (Penn.)  R.  114.     And  see  De  Mott  v. 
Laraway,  14  Wend.  (N.  Y.)  R.  226,  and  ante,  $  282. 


CH.  Vm.]  DELIVERY  BY.  301 

mentioned  in  the  bill  of  lading  or  their  assigns.1  Where  the 
owner  of  a  canal  boat  gave  a  receipt  for  a  quantity  of  nails, 
•which  he  agreed  to  deliver  to  W.  L.  No.  17  Walnut  Street, 
Philadelphia,  and  on  arrival  of  the  boat  in  Philadelphia,  the 
captain  delivered  the  nails  at  the  wharf  of  the  defendants, 
who  were  forwarding  and  commission  merchants,  with  in- 
structions not  to  deliver  them  until  the  freight  was  paid ; 
the  Court  considered,  that  the  delivery  on  the  wharf  was  no 
delivery  to  the  owner  or  the  consignee.2 

§  299.  To  cases  where  the  engagement  is  to  deliver  to  the 
persons  mentioned  in  the  bill  of  lading,  the  before  mentioned 
case  of  Hyde  v.  Trent  and  Mersey  Navigation  Company  is 
applicable.  To  the  declaration  on  a  contract  by  the  master 
of  a  steam-vessel  to  convey  goods  from  Dublin  to  London, 
and  to  deliver  the  same  at  the  port  of  London  to  the  plain- 
tiff or  his  assigns,  a  plea,  that,  after  the  arrival  of  the  vessel 
at  London,  the  defendant  caused  the  goods  to  be  deposited 
on  a  wharf,  there  to  remain  until  they  could  be  delivered  to 
the  plaintiff  or  his  assigns,  the  wharf  being  a  place  where 
goods  from  Dublin  were  accustomed  to  be  landed,  and  fit 
and  proper  for  such  purposes  ;  and  that  before  a  reasonable 
time  for  delivery  had  elapsed,  they  were  destroyed  by  a  fire, 
which  broke  out  by  accident,  was  held  ill.  The  reason 
stated  by  Tindal,  C.  J.  was,  that  it  left  the  matter  in  uncer- 
tainty. At  what  interval,  after  the  arrival  of  the  vessel,  the 
defendants  caused  the  goods  to  be  landed,  did  not  appear  ; 
and  whether  a  reasonable  time  was  allowed  to  elapse  after 
the  vessel's  arrival  in  the  port  of  London,  in  order  to  give 
time  to  the  plaintiff  to  claim  and  receive  his  goods  from 
alongside  the  vessel,  the  plea  was  altogether  silent.  It  was 
quite  consistent,  said  the  learned  Judge,  with  the  allegations 
in  the  plea,  that  the  plaintiff  demanded  the  delivery  of  his 


1  Abbott  on  Shipp.  463,  (5th  Am.  edit.) 

2  Humphreys  v.  Reed,  6  Whart.  (Penn.)  R.  435. 

26 


302  LAW   OF   CARRIERS.  [CH.  VHI. 

goods  before  they  were  landed,  and  that  the  defendants 
refused  or  neglected  to  permit  him  to  receive  them.  It  left, 
said  he,  the  matter  in  uncertainty,  whether  the  plaintiff  was 
not  compelled  against  his  will  to  receive  his  goods  from  a 
wharf  where  there  is  no  allegation  that  such  is  the  usual 
practice  in  the  port  of  delivery  ;  and  he  thought  the  principle 
laid  down  in  the  case  of  Hyde  v.  Trent  Navigation  Company, 
had  a  close  bearing  upon  and  governed  the  decision  of  the 
case  before  the  Court.1  The  judgment  in  this  case  was 
affirmed  in  the  Exchequer  Chamber,2  in  which  Patteson,  J. 
said,  that  the  defendants  were  calling  upon  the  Court  to  hold, 
that  a  delivery  of  the  goods  in  question  at  a  strange  wharf,  is 
a  delivery  according  to  the  contract.  And  Lord  Den  man, 
C.  J.,  said  :  "  The  delivery  at  Fenning's  wharf  was  certainly 
not  a  delivery  under  the  bill  of  lading,  unless  the  usage  and 
practice  of  the  port  of  London  made  it  so."  The  judg- 
ment in  the  Exchequer  Chamber  was  also  affirmed  in  the 
House  of  Lords,  excepting  in  so  far  as  it  related  to  a  ques- 
tion of  costs.3 

§  300.  The  doctrine  appears  to  be  established  in  this  coun- 
try, that,  in  the  absence  of  a  special  contract  or  of  established 
and  well  known  usage,  the  mere  landing  of  goods  from  a  ves- 
sel on  a  wharf,  is  not  such  a  delivery  to  the  consignee  as  will 
discharge  the  carrier.  Where  goods  were  put  on  board  the 
defendant's  sloop  to  be  carried  from  New  York  to  Albany, 
and  on  their  arrival  at  Albany,  were,  by  the  direction  of  the 
defendant,  put  on  a  wharf  there,  it  was  held  not  to  be  a 
delivery  to  the  consignee,  even  though  the  goods  were  taken 
by  a  cartman  who  had  often  carted  for  the  consignee.4  The 
responsibility  of  a  common  carrier  on  the  Ohio  River,  does 
not  cease,  it  has  been  held,  by  the  delivery  of  goods  on  the 

1  Gatliff  v.  Bourne,  4  Bing.  New  R.  314. 

2  1  Scott,  New  R.  l. 

3  8  Scott,  New  R.  604. 

4  Ostrander  v.  Brown,  15  Johns.  (N.  Y.)  R.  39. 


CH.  VIII.]  DELIVERY   BY.  303 

wharf,  and  notice  given  to  the  consignee  ;  but  the  duty  of 
the  carrier  is  to  attend  to  the  actual  delivery.1  Landing  cot- 
ton on  a  wharf  in  Charleston  (S.  C.)  was  held  not  a  delivery, 
it  not  being  made  so  by  usage.2  In  the  absence  of  usage 
to  the  contrary,  it  has  been  held  in  Vermont,  that  a  delivery 
of  the  goods  on  the  wharf  is  not  necessarily  a  delivery  to 
the  wharfinger.3  If  a  consignee  goes  on  board  a  vessel  and 
sees  a  list  of  the  goods,  which  are  then  in  the  hold  of  the 
vessel,  that  is  not  evidence  of  a  delivery ;  nor  is  it,  if  the 
master  soon  afterwards  puts  them  on  the  dock,  but  not  in 
the  presence,  nor  with  the  knowledge  of  the  consignee.4 

§  301.  But  the  prima  facie  obligation  of  the  carrier  to 
make  an  actual  delivery  to  the  consignee  personally,  may 
be  affected  by  a  well  established  and  generally  well  known 
custom  and  usage.5  The  doctrine  in  respect  to  all  commer- 
cial usage  is,  that  to  have  it  take  the  place  of  general  law,  it 
must  be  so  uniformly  acquiesced  in  by  length  of  time,  that 
the  jury  will  feel  themselves  constrained  to  say,  that  it  entered 
into  the  minds  of  the  parties,  and  made  a  part  of  the  con- 
tract.6 It  was  agreed  in  Hyde  v.  Trent  and  Mersey  Navi- 
gation Company,  that  the  obligation  of  a  carrier  to  deliver 
might  be  affected  by  the  customs  of  the  trade,  though  prima 
facie  the  carrier  is  bound  to  a  personal  delivery.7  In  Garside 


1  Hemphill  v.  Chenie,  6  Watts  &  S.  (Penn.)  R.  62. 

2  Galloway  v.  Hughes,  1  Bail.  (S.  C.)  R.  553. 

3  Blin  v.  Mayo,  10  Vt.  R.  56.     That  a  delivery  to  a  wharfinger  is  not 
in  general  a  delivery  according  to  the  direction,  see  Wardell  v.  Mouril- 
lyan,  2  Esp.  R.  693. 

4  Ostrander  v.  Brown,  vb.  sup. 

5  Story  on  Bailm.  §  543  ;  2  Kent,  Cornm.  604. 

6  By  Lord  Ellenborough,  C.  J.  and  Grose,  J.,  in  Rushforth  ».  Had- 
field,  7  East,  R.  224,  and  the  doctrine  recognized  in  Gibson  v.  Culver, 
17  Wend.  (N.  Y.)  R.  305.     And  see  ante,  $  229,  230. 

7  Hyde  «.  Trent  and  Mersey  Navigation  Company,  5  T.  R.  389.     So 
also  in  Ostrander  v.  Brown,  15  Johns.  (N.  Y.)  R.  39 ;  Gibson  V.  Culver, 
17  Wend.  (N.  Y.)  R.  305 ;  Blin  v.  Mayo,  10  Vt.  R.  56  ;  Galloway  v. 


304  LAW   OF   CARRIERS.  [CH.  VIII. 

v.  the  same  Company,  usage  and  course  of  business  were 
received  to  determine  whether  the  defendants,  at  the  time 
when  the  goods  were  burned,  held  them  as  common  carriers, 
or  mere  warehousemen  for  the  plaintiff;  the  proof  was  con- 
fined to  the  course  of  business  in  the  particular  line  of  stages, 
and  the  cause  was  determined  in  favor  of  the  defendants.1 
Lord  Tenterden,  in  treating  of  the  duties  of  carriers  by 
water,  says  :  —  "  The  manner  of  delivering  the  goods,  and 
consequently  the  period  at  which  the  responsibility  of  the 
master  and  owners  will  cease,  depend  upon  the  custom  of 
particular  places,  and  the  usage  of  particular  trades."  2 

§  302.  If  a  common  carrier  from  A.  to  B.  receives  goods 
to  be  carried  from  A.  to  B.,  and  by  the  known  usage  and 
course  of  business,  the  goods  are  to  be  deposited  in  the  car- 
rier's warehouse  at  B.,  the  responsibility,  as  common  carriers, 
is  limited  to  the  arrival  of  the  goods  at  B.,  when  he  holds 
them,  not  as  common  carrier,  but  as  a  mere  warehouseman.3 
The  keeping  of  the  goods  in  the  warehouse,  in  such  cases, 
is,  as  was  observed  by  Buller,  J.,  "  not  for  the  convenience 
of  the  carrier,  but  of  the  owner  of  the  goods  ;  for  when  the 
voyage  is  performed,  it  is  for  the  interest  of  the  carrier  to 
get  rid  of  them  directly."  * 

§  303.  In  the  case  of  Thomas  v.  Boston  and  Providence 
Railroad'  Corporation,5  whose  terminus  was  at  Boston,  the 


Hughes,  1  Bail.  (S.  C.)  R.  553  ;  Hemphill  v.  Chenie,  6  Watts  &  S. 
(Penn.)  R.  62;  Chickering  v.  Fowler,  4  Pick.  (Mass.)  R.  371  ;  Van 
Stantwood  v.  St.  John,  6  Hill,  (N.  Y)  R.  158;  Cope  v.  Cordova,  1 
Rawle,  (Penn.)  R.  203. 

1  Garside  v.  Trent  and  Mersey  Navigation  Company,  4  T.  R.  581. 

*  Abbott  on  Shipp.  463,  (5th  Am.  edit.) 

3  Rowe  v.  Pickford,  8  Taunt.  R.  83;  In  re  v.  Webb,  8  Taunt.  R.  443, 
and  see  ante,  §  75,  131  - 135. 

4  Garside  v.  Trent  and  Mersey  Navigation  Company,  ub.  sup. 

5  Thomas  v.  Boston  and  Providence  Railroad  Corp.  10  Mete.  (Mass.) 
R.  472. 


CH.  VIII.]  DELIVERY  BY.  305 

plaintiff,  who  lived  in  a  town  in  the  neighborhood  of  the 
defendants'  warehouse  in  Boston,  was  not  ready  to  receive 
all  his  goods,  and  agreeably  to  usage,  they  were  left  for  his 
convenience  in  the  warehouse,  and  not  for  any  benefit  to 
the  defendants  ;  but  the  defendants  were  charged,  as  com- 
mon carriers,  with  the  loss  of  a  roll  of  leather  from  the 
warehouse.  At  the  trial,  in  the  Court  of  Common  Pleas, 
before  Wells,  C.  J.,  it  was  proved  or  admitted,  that  four 
rolls  of  leather,  the  property  of  the  plaintiff,  were  delivered 
to  the  defendants  at  Providence,  to  be  transported  to  Boston ; 
that  they  were  so  transported,  and  were  deposited  at  the 
defendants'  depot  at  Boston  ;  that  a  teamster,  employed  by 
the  plaintiff,  shortly  after  called  at  the  depot,  with  a  bill  of 
the  freight  receipted  by  the  defendants,  and  inquired  for  the 
leather  ;  that  it  was  pointed  out  to  him  by  the  defendants' 
agent,  who  had  charge  of  the  depot ;  that  the  teamster  then 
took  away  two  of  the  rolls,  and  soon  after  called  again  and 
inquired  for  the  other  two  ;  that  he  was  directed  to  look  for 
them  ;  and  that  he  found  only  one.  The  defendants,  to 
show  that  they  were  not  liable  for  any  loss  occurring  while 
the  goods  were  deposited  at  their  depot,  offered  to  prove  that 
they  had,  prior  to  this  time,  posted  up  notices  containing 
this  expression :  "  merchandise,  while  in  the  company's 
storehouses,  is  at  the  risk  of  the  owners  thereof ;  "  and  that 
these  notices  had  been  so  long  posted  up,  and  so  extensively 
circulated,  that  the  plaintiff  must  be  presumed  to  have  known 
their  contents  ;  and  that  the  plaintiff,  prior  to  the  time  of  the 
loss,  had  frequently  employed  the  defendants  to  transport 
goods  for  him.  The  Judge  ruled  that  the  evidence  was 
inadmissible.  The  jury  were  instructed  "  to  ascertain  from 
all  the  evidence,  what  was  the  contract  between  the  parties, 
and  if  they  were  satisfied  that  it  was  the  usage  and  practice 
of  the  defendants,  not  only  to  transport  goods  over  the  road, 
but  also  to  deposit  them  in  their  warehouses,  without  charge, 
until  the  owner  should  have  a  reasonable  time  to  remove 
them,  and  that  they  did  provide  warehouses  or  depots  for 
the  purpose  of  so  storing  the  goods,  this  usage  and  conduct 
26* 


306  LAW   OF   CARRIERS.  [CH.  VIII. 

would  be  sufficient  evidence  for  the  jury  to  find  that  it  was  a 
part  of  the  contract,  that  the  defendants  should  so  store  and 
keep  the  goods  delivered  to  them  for  transportation  ;  and 
that,  if  such  was  the  contract,  then  their  liability  as  common 
carriers  would  continue  while  the  goods  were  stored  in  the 
depot ;  but  that  in  the  present  case,  if  the  goods,  after  having 
been  so  stored,  were  actually  delivered  to  the  plaintiff  or  his 
agent,  or  if  an  arrangement  was  entered  into  between  the 
parties,  by  themselves  or  their  agents,  by  which  the  defend- 
ants agreed  to  part  with  the  custody  and  control  over  the 
property,  and  the  plaintiff  agreed  to  assume  the  custody  and 
control  over  it,  although  there  was  no  actual  delivery,  or  if 
the  plaintiff  or  his  agent  so  improperly  conducted  himself, 
either  by  language  or  acts,  as  to  lead  the  defendants  or  their 
agents  to  believe  (they  acting  with  proper  care  and  discretion) 
that  the  plaintiff  had  undertaken  to  assume  the  control  of  the 
property,  and  had  discharged  the  defendants  from  any  further 
responsibility,  and  the  defendants,  in  consequence,  ceased  to 
take  any  further  charge  or  oversight  of  the  property,  the 
responsibility  of  the  defendants  would  be  thereby  terminated  ; 
that  the  burden  of  proving  these  facts  was  upon  the  defend- 
ants."    A  verdict  was   returned   for  the  plaintiff,  and  the 
defendants  alleged  exceptions  to  the  instructions  given  to  the 
jury.     Hubbard,  J.,  by  whom  the  opinion  of  the  Supreme 
Court  was  delivered,  after  staling  the  question  to  be,  whether 
the  defendants  were    liable  as  common   carriers,  after  the 
goods  were  safely  stored  in  their  warehouse  depot,  proceeded 
to  say  :  — "  The  transportation  of  goods  and  the  storage  of 
goods  are  contracts  of  a  different  character ;  and  though  one 
person  or  company  may  render  both  services,  yet  the  two 
contracts  are  not  to  be  confounded  or  blended  ;  because  the 
legal  liabilities  attending  the  two  are  different.     The  pro- 
prietors of  a  railroad  transport  merchandise  over  their  road, 
receiving  it  at  one  depot  or  place  of  deposit,  and  delivering 
it  at  another,  agreeably  to  the  direction  of  the  owner  or 
consignor.     But  from  the  very  nature  and  peculiar  construc- 
tion of  the  road,  the  proprietors  cannot  deliver  merchandise 


CH.  VIII.]  DELIVERY   BY.  307 

at  the  warehouse  of  the  owner,  when  situated  off  the  line  of 
the  road,  as  a  common  wagoner  can  do.  To  make  such  a 
delivery,  a  distinct  species  of  transportation  would  be  re- 
quired, and  would  be  the  subject  of  a  distinct  contract. 
They  can  deliver  it  only  at  the  terminus  of  the  road,  or  at 
the  given  depot  where  goods  can  be  safely  unladed  and  put 
into  a  place  of  safety.  After  such  delivery  at  a  depot,  the 
carriage  is  completed.  But,  owing  to  the  great  amount  of 
goods  transported  and  belonging  to  so  many  different  per- 
sons, and  in  consequence  of  the  different  hours  of  arrival, 
by  night  as  well  as  by  day,  it  becomes  equally  convenient 
and  necessary,  both  for  the  proprietors  of  the  road  and  the 
owners  of  the  goods,  that  they  should  be  unladed  and  de- 
posited in  a  safe  place,  protected  from  the  weather  and  from 
exposure  to  thieves  and  pilferers.  And  where  such  suitable 
warehouses  are  provided,  and  the  goods,  which  are  not 
called  for  on  their  arrival  at  the  places  of  destination,  are 
unladed  and  separated  from  the  goods  of  other  persons,  and 
stored  safely  in  such  warehouses  or  depots,  the  duty  of  the 
proprietors  as  common  carriers  is,  in  our  judgment,  termi- 
nated. They  have  done  all  they  agreed  to  do  ;  they  have 
received  the  goods,  have  transported  them  safely  to  the 
place  of  delivery,  and,  the  consignee  not  being  present  to 
receive  them,  have  unladed  them,  and  have  put  them  in  a 
safe  and  proper  place  for  the  consignee  to  take  them  away  ; 
and  he  can  take  them  at  any  reasonable  time.  The  liability 
of  common  carriers  being  ended,  the  proprietors,  are,  by 
force  of  law,  depositaries  of  the  goods,  and  are  bound  to 
reasonable  diligence  in  the  custody  of  them,  and  conse- 
quently are  only  liable  to  the  owners  in  case  of  a  want  of 
ordinary  care.  In  the  case  at  bar,  the  goods  were  trans- 
ported over  the  defendants'  road,  and  were  safety  deposited 
in  their  merchandise  depot,  ready  for  delivery  to  the  plain- 
tiff, of  which  he  had  notice,  and  were  in  fact  in  part  taken 
away  by  him  ;  the  residue,  a  portion  of  which  was  after- 
wards lost,  being  left  there  for  his  convenience.  No  agree- 
ment was  made  for  the  storage  of  the  goods,  and  no  further 


308  LAW   OP  CARRIERS.  [cH.  VIII. 

compensation  paid  therefor  ;  the  sum  paid  being  the  freight 
for  carriage,  which  was  payable  if  the  goods  had  been 
delivered  to  the  plaintiff  immediately  on  the  arrival  of  the 
cars,  without  any  storage.  Upon  these  facts,  we  are  of 
opinion,  for  the  reasons  before  slated,  that  the  duty  of  the 
defendants,  as  common  carriers,  had  ceased  on  their  safe 
deposit  of  the  plaintiff's  goods  in  the  merchandise  depot; 
and  that  they  were  then  responsible  only  as  depositaries 
without  further  charge,  and  consequently,  unless  guilty  of 
negligence  in  the  want  of  ordinary  care  in  the  custody  of  the 
goods,  they  are  not  liable  to  the  plaintiff  for  the  alleged  loss 
of  a  part  of  the  goods."  With  regard  to  the  notices  posted 
up,  and  which  were  relied  on  by  the  defendants,  that  mer- 
chandise in  their  warehouse  was  at  the  risk  of  the  owners, 
the  learned  Judge  said :  —  "In  the  course  of  the  trial,  the 
defendants  offered  to  prove  that,  prior  to  the  transportation 
of  the  plaintiff's  leather,  they  had  posted  up  notices  contain- 
ing this  provision,  viz.  '  merchandise,  while  in  the  company's 
storehouses,  is  at  the  risk  of  the  owners  thereof;'  and  that 
from  the  length  of  time  they  had  been  posted,  and  the  prior 
dealings  of  the  plaintiff  with  them,  he  must  be  presumed  to 
have  had  knowledge  of  the  fact ;  but  the  evidence  was  not 
admitted.  We  are  not  called  upon,  in  this  case,  to  decide  as 
to  the  legal  character  of  such  notices  ;  a  subject  which  has 
been  fully  considered  in  this  country,  as  well  as  in  England. 
See  Hollister  v.  Nowlen,  19  Wend.  234,  and  Cole  v.  Goodwin, 
19  Wend.  251,  and  the  long  list  of  English  authorities  there 
cited,  on  page  269.  In  the  view  of  the  law  bearing  upon 
this  case,  viz.  that  the  defendants  are  not  liable  as  common 
carriers,  the  notice,  we  think,  becomes  unimportant,  as  it 
clearly  would  not  screen  the  defendants  from  loss  occasioned 
by  their  negligence  or  want  of  ordinary  care ;  and  beyond 
that  they  are  not  chargeable.  Other  questions  which  arose 
upon  the  trial  it  is  not  necessary  to  notice.  For  the  reasons 
stated,  we  think  the  learned  Judge  erred  in  his  instructions 
to  the  jury,  that  the  liability  of  common  carriers  continued 
to  attach  to  the  defendants  while  the  goods  were  stored  in 


CH.  VHI.]  DELIVERY   BY.  309 

their  depot.  The  verdict  must  therefore  be  set  aside.  Upon 
the  evidence  as  reported,  there  appears  little  ground  to 
charge  the  defendants  with  want  of  ordinary  care  in  the 
custody  of  these  goods ;  but  that  is  a  question  to  be  settled 
on  the  further  trial  of  the  case." 

§  304.  Therefore,  when  a  common  carrier  pursues  the 
business  both  of  transportation  and  Warehouse-keeping,  the 
nature  and  extent  of  his  liability  will  depend  upon  the  char- 
acter in  which  he  is  accustomed  to  hold  the  goods  at  the  time 
of  the  loss.1  If  they  are  received  into  the  warehouse  of  such 
carrier  to  await  the  future  orders  of  the  owner  or  consignor 
as  to  their  destination,  the  carrier  is  clothed  only  with  the 
ordinary  duties  and  responsibilities  of  a  warehouseman  ;  his 
responsibility,  as  common  carrier,  having  ceased.2  If  a 
common  carrier  between  A.  and  B.  receives  goods  to  be  car- 
ried from  A.  to  B.,  and  thence  to  be  forwarded  by  a  distinct 
conveyance  to  C.  ;  as  soon  as  he  arrives  with  the  goods  at  B., 
and  deposits  them  in  his  warehouse  there,  his  responsibility 
as  carrier  ceases ;  for  that  is  the  termination  of  his  duty  as 
such.3  A  common  carrier,  it  has  been  shown,  is  liable  for 
losses  by  fire  not  occasioned  by  inevitable  necessity,  as  by 
lightning  ;  whereas  a  warehouseman  is  not  liable  for  any 
losses  by  fire,  unless  it  be  in  consequence  of  ordinary  negli- 
gence.4 But  if  the  destination  is  marked  out,  and  the  carrier 
has  nothing  to  do  but  to  forward  the  goods  on  the  earliest 
opportunity  to  the  place  indicated,  he  is  responsible,  as  com- 
mon carrier,  for  ahy  loss  or  damage  that  may  happen  to  the 
goods  in  the  warehouse,  as  they  are  then  in  transiiu,  in  con- 
templation of  law.5  If  the  consignee,  having  no  warehouse 


1  Ante,  §  75,  131  -  135  ;  Story  on  Bailm.  §  446. 

2  Garside  t».  Trent  and  Mersey  Navigation  Company,  4  T.  R.  581. 

3  Ante,  §75,  131-135. 
«  Ante,  Chap.  III. 

5  Forward  v.  Pittard,  1  T.  R.  27. 


310  LAW    OF   CARRIERS.  [CH.  VIII. 

of  his  own,  asks  the  carrier  to  keep  the  goods  until  he  can 
conveniently  send  for  them,  the  carrier's  liability,  as  common 
carrier,  is  at  an  end,  and  he  thenceforth  holds  them  only  as  a 
warehouseman  for  hire,  or  a  gratuitous  bailee,  according  as 
he  may  or  may  not  be  paid  for  care  and  custody  of  them.1 
A  common  carrier,  therefore,  when  his  responsibility,  as 
such,  is  thus  changed  to  that  of  a  warehouseman,  is  in  the 
same  situation  as  if  he  had  offered  to  deliver  the  goods  at  the 
residence  of  the  consignee  ;  that  is,  he  has  fulfilled  his  con- 
tract as  a  carrier  ;  and  if  the  hire  is  not  paid,  he  is  not  bound 
to  part  with  the  possession  of  the  goods  ;  but  he  may  law- 
fully take  them  back  to  his  warehouse,  or  place  of  business, 
and  he  holds  them  thenceforward  not  as  a  common  carrier, 
but  as  a  bailee  for  hire  ;  or  if  by  agreement,  he  is  not  to 
charge  warehouse  rent,  as  a  gratuitous  bailee.2  In  all  cases 
of  this  description,  the  material  consideration  is,  whether  the 
carrier  retains  the  possession  of  the  goods,  or  is  to  perform 
any  further  duty,  either  by  custom  or  contract,  as  carrier.3 

§  305.  It  has  been  stated  and  shown  to  be  the  duty  of  the 
master  of  a  vessel,  under  his  engagement  to  deliver  goods  to 
the  persons  mentioned  in  the  bill  of  lading  or  their  assigns, 
to  make  an  actual  delivery  to  the  proper  person  ;  4  that  is, 
in  the  absence  of  any  special  contract  or  well  known  usage 
to  the  contrary.5  The  defendant,  in  Ostrander  v.  Brown,6 
offered  to  prove,  that  it  was  customary  in  the  city  of  Albany 
for  the  captains  of  vessels  freighted  with  goods  for  mer- 
chants in  that  place,  to  deliver  them  by  ptitting  them  upon 
the  dock,  and  giving  notice  to  the  consignees,  who  usually 


1  See  Ante,  §  295  ;  Webb  in  re,  8  Taunt.  R.  449. 

2  Storr  v.   Crowley,    1   M'Clel.   &  You.  R.  136  ;  Young  v.   Smith, 
3  Dana,  (Ken.)  R.  91. 

3  See  Ante,  §  301  ;  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  R.  305. 

4  Ante,  §  298,  et  seq. 

5  Ante,  §  301,  et  seq. 

6  Ostrander  v.  Brown,  15  Johns.  (N.  Y.)  R.  39. 


CH.  VHI.]  DELIVERY  BY.  311 

had  cartmen  to  carry  them  to  their  stores,  and  that  such 
delivery,  with  notice,  was,  by  custom,  considered  a  good 
delivery.  Platt,  J.,  who  delivered  the  opinion  of  the  Court, 
said  :  "  In  a  case  where  the  precise  place  of  delivery  is  mate- 
rial, it  may  be  proper  to  allow  evidence  of  local  usage. 
For  instance,  says  he,  the  usage  at  Havana  is  often  proved 
to  show  that  some  species  of  cargoes,  such  as  slaves,  are  to 
be  delivered  at  the  Moro  Castle,  and  that  other  articles  are 
delivered  only  on  the  wharves  in  the  inner  harbor." 

§  306.  In  Chickering  v.  Fowler,1  the  action  was  an  action 
of  assumpsit  upon  the  following  contract,  dated  Newbury- 
port :  —  "  Received  on  board  brig  Fanny  93  barrels  of  onions, 
which  I  promise  to  deliver  to  Thomas  Haven,  of  Portsmouth, 
he  paying  freight  for  the  same  five  cents  per  barrel."  Trial 
was  had  on  the  general  issue.  The  brig,  of  which  the  de- 
fendant was  master,  it  appeared,  was  going  from  Newbury- 
port  to  Portsmouth,  for  freight  to  some  southern  port,  and 
she  had  only  these  onions  on  board  as  freight  from  Newbury- 
port  to  Portsmouth.  The  defendant  went  with  the  brig  to 
the  Pier  wharf  in  Portsmouth,  where  vessels  frequently  go 
to  deliver  goods  which  they  have  on  freight  for  persons  in 
Portsmouth,  and  gave  notice  to  Haven,  that  the  onions  were 
there  for  him.  Haven  told  the  defendant,  that  he  must 
deliver  them  at  his  (Haven's)  wharf,  or  he  would  not 
receive  them.  -The  defendant,  the  master,  refused  to  do 
this,  and  a  day  or  two  after  put  the  onions  on  the  wharf, 
where  they  remained  two  nights,  and  were  frozen  and 
injured.  The  plaintiff  contended  that  the  defendant,  both 
by  the  custom  of  Portsmouth,  and  by  the  general  rules  of 
law,  was  bound  to  deliver  the  onions  at  the  wharf  of  the 
consignee,  and  that  he  was  liable  for  his  gross  negligence  in 
not  taking  reasonable  and  ordinary  care  of  them.  It  ap- 
peared, that  the  goods  were  shipped  by  the  plaintiff  by  the 

1  Chickering  v.  Fowler,  4  Pick.  (Mass.)  R.  371 ;  S.  P.  in  House  ». 
Schooner  Lexington,  (N.  Y.  Distr.  Co.)  2  N.  Y.  Legal  Observer,  4. 


312  LAW  OF  CARRIERS.  [cH.  VIII. 

order  of  Haven.  The  Court  held,  that  a  promise  by  a 
master  of  a  vessel  to  deliver  goods  to  a  consignee  does  not 
require  that  he  should  deliver  them  to  the  consignee  per- 
sonally, or  at  a  particular  wharf,  it  being  sufficient  if  he 
leaves  them  at  some  usual  place  of  unlading,  giving  notice  to 
the  consignee  that  they  are  so  left ;  and  if  after  such  notice 
the  consignee  refuses  to  receive  the  goods,  it  is  the  duty  of 
the  master  to  take  care  of  them  for  the  owner ;  unless  the 
consignee  is  under  an  obligation  to  receive  them,  when  they 
will  be  at  his  risk  ;  and  such  facts  are  for  the  jury. 

§  307.  In  case  for  not  delivering,  according  to  the  plain- 
tiff's direction,  an  anchor  sent  by  defendant's  hoy,  but  by 
him  left  with  the  wharfinger,  (at  the  quay  where  the  hoy 
usually  discharged  her  cargo,)  who  had  paid  the  defendant 
the  freight,  and  gave  him  a  receipt  for  the  goods  delivered  ; 
although  it  was  proved,  that  by  the  custom  the  hoy  men 
never  troubled  themselves  about  the  goods  after  their  deliv- 
ery at  the  wharf,  (except  in  cases  of  flour) ;  it  was  held, 
"  that  such  custom  did  not  discharge  the  hoyman  from  his 
implied  undertaking  to  deliver  the  goods  according  to  the 
direction  ;  and  the  delivery  to  the  wharfinger  was  not  a 
delivery  according  to  the  direction."  1 

§  308.  If  the  goods,  after  their  arrival,  are  put  on  board 
of  a  lighter  in  the  customary  way,  and  the  owner  then  takes 
exclusive  custody  of  them  before  they  are  landed,  the  car- 
rier is  discharged  from  any  subsequent  loss.2  In  the  river 
Thames,  in  England,  the  liability  of  the  master  by  custom 
continues  whilst  the  goods  are  delivering  into  a  lighter,  sent 
by  the  consignee  to  receive  them,  until  the  loading  is  com- 
pleted.3 In  an  action  of  assumpsit  against  the  master  of  a 
ship,  for  not  safely  conveying  and  delivering  a  quantity  of 

1  Wardell  v.  Mourillyan,  2  Esp.  R.  693.     See  Jeremy  on  Carr.  19,  65 ; 
Add.  on  Contr.  798,  810. 

2  Strong  v.  Natally,  4  Bos.  &  Pull.  R.  16. 

3  Jeremy  on  Carr.  66. 


CH.  VIII.]  DELIVERY  BY.  313 

tallow  to  the  plaintiffs  in  London,  who  were  the  consignees, 
the  plaintiff  had  sent  a  lighter  to  fetch  the  tallow  from  the 
ship,  which  had  arrived  in  the  Thames,  Whilst  the  lighter 
was  left  lashed  to  the  ship,  with  part  of  the  tallow  on  board, 
it  was  cut  from  the  ship,  and  part  of  the  tallow  stolen 
thereout ;  and  although  the  defendant  had  told  the  lighter- 
man, that  he  had  not  hands  enough  to  guard  the  lighter,  (to 
which  no  answer  was  returned,)  it  was  said  by  Lord  Ken- 
yon  :  "  The  custom  of  the  river  must  undoubtedly  govern 
the  parties.  There  might  have  been  a  special  contract, 
limiting  the  defendant's  duty,  but  he  could  not  do  that  by 
any  act  of  his  own,  without  the  consent  of  the  other  party."  1 
But  it  has  been  much  contested,  says  Lord  Tenterden, 
whether  the  master  is  by  usage  bound  to  take  care  of  the 
lighter,  after  it  is  fully  laden,  until  the  time  when  it  can  be 
properly  removed  from  the  ship  to  the  wharf;2  and  at  a 
trial,  he  says,  on  this  question,  it  was  held,,  that  the  master 
was  not  obliged  to  do  this.3 

§  309.  In  England,  when  goods  are  brought  by  ships  from 
foreign  countries,  the  bill  of  lading  is  merely  a  speci?!  under- 
taking to  carry  from  port  to  port;  and  in  such  case,  it  has 
been  considered  that,  according  to  the  established  course  of 
trade,  a  delivery  on  the  usual  wharf  is  such  a  delivery  as  will 
discharge  the  ship-owner.4  Buller,  J.,  in  Hyde  v.  Trent  and 
Mersey  Navigation  Company,5  says :  "  When  goods  are 
brought  here  from  foreign  countries,  they  are  brought  under 
a  bill  of  lading,  which  is  merely  an  undertaking  to  carry  from 


1  Catley  v.  Wintringham,  Peake,  N.  P.  Cases,  140. 

2  Abbott  on  Shipp.  465,  (5th  Am.  edit.) 

3  Robinson  v.  Turpin,  cited  in  Abbott,  sup.,  as  decided  Guildhall  Sit. 
after  Trin.  Term,  1805,  Lord  Ellenborough,  C.  J.     This  was  an  action 
by  the  owner  of  the  goods  against  a  lighterman,  and  the  plaintiff  obtained 
a  verdict.     At  a  former  trial  before  Sir  James  Mansfield,  C.  J.,  the  plain- 
tiff had  been  nonsuited.     But  see  Strong  v.  Natally,  ub.  sup. 

4  Abbott  on  Shipp.  463,  (5th  Am.  edit.) 

5  Hyde  ».  Trent  and  Mersey  Navigation  Company,  5  T.  R.  389. 

27 


314  LAW   OF   CARRIERS.  [CH.  VIII. 

port  to  port."  Ashurst,  J.,  in  the  same  case,  says:  "The 
case  of  foreign  goods  brought  to  this  country  depends  on 
the  custom  of  the  trade,  of  which  the  persons  engaged  in  it 
are  supposed  to  be  cognizant ;  by  the  general  custom,  the 
liability  of  ship-carriers  is  at  an  end  when  the  goods  are 
landed  at  the  usual  wharf."  But  this  difference  in  the  ingre- 
dients necessary  to  constitute  a  sufficient  delivery  by  the 
inland  and  foreign  ship-carrier,  seerns  not  to  be  incidental  to 
their  respective  characters,  but  to  arise  from  the  nature  of 
their  respective  contracts  ;  the  latter  undertaking,  by  the  bill 
of  lading,  to  convey  from  port  to  port,  is  discharged  by  a 
delivery  pursuant  to  the  undertaking  ;  the  former  contracting 
to  deliver  to  the  consignee  is  bound  to  the  performance  of  an 
actual  delivery  in  accordance  with  his  contract ;  though  if  he 
had  only  engaged  to  convey  generally  from  one  place  to 
another,  a  delivery  at  the  latter  place  might  discharge  him, 
as  that  at  the  port  does  the  ship-carrier  ;  in  the  case,  for 
instance,  where  the  land  carrier's  warehouse  is  the  place  of 
delivery.1 

§  310.  In  this  country,  the  rule  adopted  in  regard  to  for- 
eign voyages,  seems  to  be  that,  in  such  cases,  the  carrier  is 
not  bound  to  make  a  personal  delivery  of  the  goods  to  the 
consignee  ;  but  it  will  be  sufficient  that  he  lands  them  at  the 
usual  wharf  or  proper  place  of  landing,  and  gives  due  and 
reasonable  notice  thereof  to  the  consignee.2 

§  311.  In  Cope  v.  Cordova,  in  the  Supreme  Court  of  Penn- 
sylvania,3 it  was  held,  that  the  master  of  a  vessel  arriving  at 
the  port  of  Philadelphia,  from  a  foreign  port,  is  not  bound  by 
the  bill  of  lading,  to  deliver  the  goods  personally  to  the  con- 
signee ;  and  that  the  liability  of  the  ship-owner  ceases  when 
the  goods  are  landed  on  the  usual  wharf.  Rogers,  J.,  who 

1  See  ante,  %  302,  303,  304. 

2  Story  on  Bailm.  §  545  ;  2  Kent,  Comm.  604. 

3  Cope  v.  Cordova,  1  Rawle,  (Penn.)  R.  203. 


CH.  VIII.]  DELIVERY  BY.  315 

gave  the  opinion  of  the  Court,  said  :  "  In  unloading  a  vessel 
at  the  port  of  Philadelphia,  it  is  usual,  as  soon  as  articles  of 
bulk,  such  as  crates,  are  brought  upon  deck,  to  pass  them 
over  the  side  of  the  ship,  and  land  them  on  the  wharf.  The 
owners  station  a  clerk  on  the  wharf,  who  takes  a  memoran- 
dum of  the  goods,  and  the  day  they  are  taken  away,  and  this 
for  the  information  of  his  employers.  A  manifest  or  report 
of  the  cargo  is  made  by  the  master,  and  deposited  at  the 
custom-house,  and  the  collector,  on  the  arrival  of  the  vessel 
within  his  district,  puts  and  keeps  on  board  one  or  more 
inspectors,  whose  duty  it  is  to  examine  the  contents  of  the 
caygo  and  superintend  its  delivery.  And  no  goods  from  a 
foreign  port  can  be  unladen  or  delivered  from  the  ship  in  the 
United  States,  but  in  open  day,  between  the  rising  and  setting 
of  the  sun,  except  by  special  license  ;  nor  at  any  time  with- 
out a  permit  from  the  collector,  which  is  granted  to  the  con- 
signee upon  payment  of  duties  or  securing  them  to  be  paid. 
The  holders  of  a  bill  of  lading  are  presumed  to  be  well 
informed  of  the  probable  period  of  the  vessel's  arrival,  and 
at  any  rate  such  arrival  is  matter  of  notoriety  in  all  maritime 
places.  The  consignee  is  previously  informed  of  the  ship- 
ment, as  it  is  usual  for  one  of  the  bills  of  lading  to  be  kept 
by  the  merchant,  a  second  is  transmitted  to  the  consignee  by 
the  post  or  packet,  while  the  third  is  sent  by  the  master  of  the 
ship  together  with  the  goods.  With  the  benefit  of  all  these 
safeguards,  if  the  consignee  uses  ordinary  diligence,  there  is 
as  little  danger  in  this  country  as  in  England  and  France,  of 
inconvenience  or  loss  ;  whereas  the  risk  would  be  greatly 
increased  if  it  should  be  the  duty  of  the  ship-owner  to  see  to 
the  actual  receipt  of  the  goods,  and  particularly  in  the  case 
of  a  general  ship  with  numerous  consignments  on  board, 
manned  altogether  by  foreigners  unacquainted  with  the  lan- 
guage at  the  port  of  delivery.  I  have  taken  some  pains  to 
ascertain  the  opinion  and  practice  of  merchants  of  the  city 
on  this  question,  which  is  one  of  general  concern.  My 
inquiries  have  resulted  in  this,  that  the  goods,  when  landed, 
have  heretofore  been  considered  at  the  risk  of  the  consignee, 


316  LAW   OF   CARRIERS.  [CH.  VIII. 

and  that  the  general  understanding  has  been,  that  the  liability 
of  the  ship-owner  ceases  upon  the  landing  of  the  goods  at  the 
usual  wharf.  I  see  no  reason  to  depart  from  a  rule  which 
has  received  such  repeated  sanctions,  from  which  no  incon- 
venience has  heretofore  resulted,  and  which  it  is  believed  in 
practice  has  conduced  to  the  general  welfare.  If  the  special 
verdict  had  found  a  uniform  usage  in  the  one  way  or  the  other, 
we  should  have  held  ourselves  bound  by  the  custom  ;  for  I 
fully  accede  to  the  principle,  that  the  mode  of  delivery  is 
regulated  by  the  practice  of  the  place.  The  contract  is  sup- 
posed to  be  made  in  reference  to  the  usage  at  the  port  of 
delivery.  But  if  no  usage  had  been  found,  we  hold  it  to  be 
equally  clear,  that  we  should  be  governed  by  the  general 
custom.  The  case  finds  that  the  consignee  obtained  a  permit 
for  the  landing  of  the  goods,  that  they  were  landed  on  the 
wharf,  that  he  was  aware  the  master  was  employed  in  dis- 
charging his  cargo,  and  that  the  consignee  sent  his  own  porter 
to  receive  and  take  them  away  ;  that  he  inquired  for  them, 
but  did  not  receive  them.  If,  under  such  circumstances,  the 
goods  were  lost,  it  was  in  consequence  of  his  own  negligence 
or  his  servant's.  It  was  the  duty  of  the  porter,  instead  of 
merely  inquiring,  to  stay  till  he  had  actually  received  the 
goods.  It  is  beside  the  question  to  say,  that  perishable  arti- 
cles may  be  landed,  at  improper  times,  to  the  great  damage 
of  the  consignee.  When  such  special  cases  arise,  they  will 
be  decided  on  their  own  circumstances.  This  goes  on  the 
ground  that  the  master  has  acted  with  good  faith,  and  in  the 
usual  manner,  and  in  such  case  it  is  the  opinion  of  the  Court 
that  the  ship-owners  are  discharged."  The  learned  Judge 
concluded  by  saying,  that  the  Court  would  wish  to  be  under- 
stood as  giving  no  opinion  on  the  law  which  regulates  the 
internal  or  coasting  trade,  to  which  he  understood  the  case  of 
Ostrander,  in  New  York,  to  apply  ;  and  he  did  not  consider 
that  the  opinion  of  the  Court  interfered  with  the  principles  of 
that  case.1 

1  See  Ostrander  v.   Brown,   ante,  §  300.      In  Hemphill  v.  Chenie, 


CH.  VIII.]  DELIVERY  BY  317 

§  312.  Iii  England,  when  ships  arrive  from  Turkey,  and  are 
obliged  to  perform  quarantine,  before  their  entry  into  the  port 
of  London,  it  is  usual  for  the  consignee  to  send  down  per- 
sons, at  his  own  expense,  to  pack  and  take  care  of  the  goods  ; 
and,  therefore,  where  a  consignee  had  omitted  to  do  so,  and 
goods  were  damaged  by  being  sent  loose  to  shore,  it  was 
held,  that  he  had  no  right  to  call  upon  the  master  of  the  ship 
for  compensation.1 

§  313.  If  it  is  customary  for  the  carrier  by  water  to  carry 
merely  from  port  to  port,  or  from  wharf  to  wharf,  and  for  the 
owner  or  consignee  to  receive  the  goods  at  the  vessel  or  at 
the  wharf,  as  soon  as  the  arrival  of  the  vessel  is  reported,  it 
is  of  the  essence  of  the  rule,  that  such  is  a  good  delivery,  that 
due  and  reasonable  notice  should  be  given  to  the  owner  or  con- 
signee, so  as  to  afford  him  a  fair  opportunity  of  providing  suit- 
able means  to  take  care  of,  and  carry  off,  the  goods.2  Such 
notice  comes  in  lieu  of,  and  answers  for,  an  actual  delivery, 
where  the  goods,  according  to  the  usual  course  of  business, 
are  to  be  deposited  in  any  particular  place.3  Carriers  by  ships 
and  boats  must  stop  at  the  wharf;  railroad  cars  must  remain 
on  the  track,  and  notice  of  the  arrival  and  place  of  deposit, 
in  these  cases,  comes  in  lieu  of  personal  delivery.4  The 
general  rule  is  recognized  in  Fisk  v.  Newton,  in  New  York,6 
to  be,  that  a  common  carrier  is  bound  to  deliver  the  goods 

6  Watts  &  S.  (Penn.)  R.  62,  the  Court  considered,  that  the  rule,  as  to 
landing  goods  upon  the  wharf,  however  it  might  apply  to  maritime  vessels 
in  foreign  trade,  did  not  properly  apply  to  transportation  on  our  western 
waters,  or  the  internal  or  the  coasting  trade. 

1  Dunnage  v.  Joliffe,  before  Lord  Kenyon,  C.  J.,  at  Guildhall   Sit. 
Mich.  Term,  1789,  cited  in  Abbott  on  Shipp.  465,  (5th  Am.  edit.) 

2  2  Kent,  Comm.  604  ;  Cope  v.  Cordova,  ub.  sup. ;  Wardell  v.  Mourillyan, 
2  Esp.  R.  693 ;  Quiggin  ».  Duff,  1  M.  &  Welsh.  R.  574  ;  Packard  v.  Get- 
man,  6  Cow,  (N.  Y.)  R.  757,  and  cited  more  fully,  ante,  §  145. 

3  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  R.  305. 

4  Ibid. 

5  Fiske  v.  Newton,  1  Denio,  (N.  Y.)  R.  45 ;  and  see  Story  on  Bailm. 
$545. 

27* 


318  LAW  OF  CARRIERS.  [CH.  VHI. 

intrusted  to  him  for  conveyance,  personally  to  the  consignee 
at  the  place  of  delivery,  with  the  qualification,  that,  in  cer- 
tain cases,  where  the  transportation  is  by  vessels  and  boats, 
notice  of  the  arrival  at  the  place  of  deposit  is  sufficient. 

§  314.  Goods  were  forwarded  by  K.,  a  carrier  from  Lon- 
don to  Liverpool,  addressed  to  the  plaintiff  (at  the  Isle 
of  Man)  "  care  of  D.,  (the  defendant,)  Brunswick  Street, 
Liverpool."  The  goods  were  landed  by  K.  on  a  public 
wharf  at  Liverpool,  and  on  the  same  day  notice  was  sent  to 
the  defendant  of  their  arrival,  and  he  signed  the  carrier's 
book,  containing  an  acknowledgment  that  the  goods  in 
question  had  arrived  for  him  (the  defendant.)  He  caused 
them  also  to  be  entered  in  the  clearance  and  manifest  of  a 
steam- vessel  about  to  sail  for  the  Isle  of  Man.  It  was 
proved  also,  that  on  former  occasions,  when  goods  had  been 
brought  by  K.  for  the  defendant,  he  had  desired  that  they 
might  remain  at  the  wharf  till  he  sent  for  them.  The 
defendant  never  sent  to  the  wharf  for  the  boxes  until  six 
days  after  their  arrival,  when  they  were  not  to  be  found. 
In  an  action  on  the  case  against  the  defendant  for  negligence 
in  not  taking  proper  care  of  the  goods,  it  was  held,  that  there 
was  evidence  for  the  jury  of  a  delivery  to,  and  acceptance 
by,  him.1 

§  315.  The  carrier  is  of  course  bound  to  continue  his  care 
of  the  goods  until  a  knowledge  of  the  notice  is  brought  home 
to  the  owner  or  consignee.2  It  has  been  held  by  the  Supreme 
Court  of  Louisiana,  that  landing  goods  by  the  captain  of  a 
vessel  on  the  levee  at  New  Orleans,  being  the  usual  place  of 
unloading,  with  notice  in  the  newspapers  to  the  consignees, 
is  not  sufficient.3  In  Vermont  it  has  been  held,  that  a  person 
undertaking  to  carry  lumber  down  a  river  to  a  certain  cove, 

1  Quiggin  v.  Duff,  1  M.  &  Welsh,  R.  173. 

2  2  Kent,  Comm.  604,  605,  (6th  edit.) 

3  Pacard  v.  Bordier,  2  Kent,  Comm.  (6th  Am.  edit.)  n.  (f)  to  p.  605. 


CH.  VIII.]  DELIVERY  BY.  319 

and  being  refused  a  place  of  deposit  there,  he  left  them  near 
by  in  as  proper  a  place  as  could  be  found,  from  which  they 
were  carried  away  by  a  flood  and  lost,  was  responsible, 
because  he  did  not  continue  his  care  until  he  had  given  notice 
to  the  owner,  and  until  the  owner  had  a  reasonable  time  to 
assume  the  care  over  them.1 

§  316.  But  the  carrier  may  be  permitted  to  prove,  that 
the  uniform  usage  and  course  of  the  business  in  which  he  is 
engaged  is  to  leave  the  goods  at  his  usual  stopping  places, 
in  the  towns  to  which  they  are  directed,  without  notice  ; 
and  if  such  usage  has  been  of  so  long  continuance  as  to 
justify  a  jury  to  find  that  it  was  known  to  the  employer, 
the  carrier  will  be  discharged.2  A  transportation  company 
on  Lake  Champlain  were  intrusted  with  a  package  of  bank 
bills,  to  carry  from  Burlington  to  Plattsburgh,  which  was 
directed  to  the  cashier  of  the  bank  at  the  latter  town,  and 
they  delivered  the  same  to  the  wharfinger  at  the  wharf  at 
the  latter  town,  at  which  the  boat  touched,  from  whom  it 
was  stolen.  In  an  action  by  the  consignors  against  the 
company  for  the  value  of  the  package,  it  was  held,  that  it 
was  competent  for  the  company  to  prove,  that  it  was  their 
uniform  usage  to  deliver  such  packages  of  money,  when 
intrusted  to  them,  to  the  wharfinger  having  the  care  of  the 
wharf  where  the  boat  landed,  without  giving  any  notice  to 
the  consignee  ;  and  that  such  usage  was  well  known  to  the 
consignors.3  In  a  subsequent  case  between  the  same  parties, 
and  before  the  same  Court,  the  Court  say :  —  "  Whatever 
heretofore  may  have  been  the  views  of  the  Court  upon  this 
point,  a  majority  are  now  of  opinion  that  it  is  not  necessary 
to  prove,  that  the  plaintiff  had  personal  knowledge  of  the 
usage,  in  order  to  make  it  available  to  the  defendants."  4 

1  Picket  v.  Downer,  4  Verm.  R.  21. 

2  Gibson  v.  Culver,  17  Wend.  (N.  Y.)  R.  305. 

3  Farmers  and  Mechanics  Bank  v.  Champain  Transp.  Co.  16  Verm.  R. 
52. 

*  18  Vermt.  R.  131. 


320  LAW   OF   CARRIERS.  [CH.  VIII. 

They  considered,  that,  upon  this  point,  the  case  of  Van 
Stantwood  v.  St.  John,1  had  a  direct  bearing  upon  the  case 
at  bar  ;  and  they  considered  the  doctrine  of  that  case  to  be, 
that  when  goods  are  delivered  to  a  carrier,  marked  for  a 
particular  place,  without  any  directions  as  to  their  trans- 
portation and  delivery,  except  such  as  may  be  inferred  from 
the  marks  themselves,  the  carrier  is  only  bound  to  transport 
and  deliver  them  according  to  the  established  usage  of  the 
business  in  which  he  is  engaged,  whether  the  consignor 
knew  of  the  usage  or  not. 

§  317.  As  to  the  delivery  of  the  baggage  of  passengers 
from  stage-coaches,  steamboats,  railroad  cars,  &c.,  the  sub- 
ject incidentally  received  a  degree  of  attention  in  a  former 
chapter,  in  treating  of  the  different  descriptions  of  property 
for  the  carriage  of  which  persons  become  responsible,  as 
common  carriers.2  The  necessity  of  delivery  of  baggage  to 
the  passenger,  at  the  end  of  his  journey,  by  the  common 
carrier,  before  his  responsibility  can  cease,  was  there  incul- 
cated ;  but  the  subject  here  deserves  more  particular  atten- 
tion than  has  before  been  bestowed  upon  it. 

§  318.  Stage-coach  proprietors  were  held  bound,  in  Cole 


1  Van  Stantwood  v.  St.  John,  6  Hill,  (N.  Y.)  R.  157.     Whenever  a 
wharf  is  the  usual  place  of  receiving  goods  by  a  consignee,  it  is  a  suffi- 
cient place  of  delivery.     Sawyer  v.  Joslin,  20  Vermt.  R.  172.     But  in 
Ohio  it  was  held,  that  a  local  custom  at  Memphis  regulating  the  mode 
of  delivering  the  goods  there,  is  not  binding  on  shippers  in  Cincinnati, 
unless  known  to  merchants  and  shippers  there.     Albatross  v.  Wayne,  16 
Ohio  R.  513.     In  Delaware,  the  usage  or  custom  must  have  been  of  stand- 
ing notoriety,  as  to  warrant  a  jury  to  find,  that  the  owner  or  consignee  of 
the  goods  had  knowledge  of  it ;  because  having  such  knowledge,  it  is 
presumed  that  the  usage  made  part  of  the  contract,  and  is  equivalent  to 
a  direction  given  by  the  owner  or  consignee  to  the  carrier  to  deposit  the 
goods  at  the  stopping  place.     McHenry  v.  Railroad  Co.,  4  Harring.  (Del.) 
R.  448,  the  Court  citing  as  authority  Gibson  v.  Culver,  17  Wend.  (N.  Y.) 
R.  305. 

2  See  ante,  §  107     117. 


CH.   VIII.]  DELIVERY  BY.  321 

v.  Goodwin,1  and  in  Powell  v.  Myers,2  as  common  carriers, 
to  deliver  to  each  passenger,  at  the  end  of  his  journey,  his 
trunk  or  baggage ;  and  in  the  former  case  it  was  held,  that 
they  could  not  exonerate  themselves  from  this  obligation  by 
a  notice  that  all  baggage  was  "at  the  risk  of  the  owner."3 
The  defendants,  in  the  former  case,  were  stage-coach  pro- 
prietors, on  a  line  from  Cherry-Valley  in  Otsego  county,  to 
Manlius  in  Onondaga  county,  and  from  thence  west.  The 
plaintiff  took  a  seat  in  one  of  their  coaches  as  a  passenger 
from  Cherry- Valley  to  Madison,  a  town  in  the  line  of  the 
route,  and  paid  the  usual  fare  for  himself  and  his  baggage, 
consisting  of  a  trunk  containing  clothing,  $20  in  bank-bills, 
and  a  few  books.  The  name  of  the  plaintiff  and  the  place 
of  his  destination  were  marked  on  a  way-bill,  but  no  men- 
tion made  of  his  trunk.  The  trunk  was  put  on  board,  said 
the  witness,  (probably  in  the  usual  place  for  carrying  bag- 
gage.) The  distance  from  Cherry-Valley  to  Madison  is 
forty-two  miles.  The  coach  arrived  at  Madison  about  seven 
o'clock  in  the  morning,  and  was  driven  to  the  stage-house, 
the  usual  stopping  place  for  breakfasting.  The  plaintiff  left 
the  coach  and  walked  across  the  street,  giving  no  directions 
as  to  his  trunk ;  he  returned  to  the  stage-house  and  took 
breakfast.  There  was  a  change  of  horses  and  driver  at 
this  place,  but  no  change  of  the  coach.  The  coach  stop- 
ped at  Madison  about  an  hour.  The  new  driver,  when 
about  to  start,  asked  the  plaintiff,  supposing  him  to  be  a 
passenger,  if  he  was  going  on,  and  received  an  answer  in 
the  negative.  The  coach  then  drove  on.  About  an  hour 
afterwards,  the  plaintiff  inquired  for  his  trunk  of  the  driver 
who  drove  the  coach  to  Madison,  who  answered,  that  he 
did  not  know  that  he  had  a  trunk,  and  asked  him  why  he 
had  not  spoken  about  it.  This  driver  testified,  that  when 

1  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  R.  251. 

2  Powell  v.  Myers,  26  Wend.  (N.  Y.)  R.  591. 

*  See  on  the  subject  of  such  notices,  ante,  §  238-245,  and  Hollister  v. 
Nowlon,  Appx.  p.  xviii.,  and  Cole  v.  Goodwin,  ub.  sup.,  and  Appx.  p. 
xxxiii. 


322  LAW   OF    CARRIERS.  [CH.  VIII. 

he  saw  the  plaintiff  leave  the  coach  and  go  across  the  street, 
he  supposed  he  had  left,  and  had  no  baggage.  Eleven 
months  after  the  loss  of  the  trunk,  it  was  found  at  Auburn 
and  brought  back  to  Hamilton,  where  it  was  opened,  and 
all  its  contents  found  safe,  except  that  only  $3  in  bank-bills 
were  found  in  the  trunk  instead  of  $20,  put  in  at  Cherry- 
Valley.  It  was  proved,  that  it  was  an  invariable  custom  in 
respect  to  this  line  and  stage-coaches  generally  carrying 
passengers  and  their  baggage,  not  to  lake  off  any  of  the 
baggage  at  the  stopping  places  where  the  coaches  were  not 
changed,  unless  at  the  request  of  the  passengers.  Proof  of 
this  custom  was  objected  to,  but  received  by  the  Judge.  It 
was  also  proved,  that  the  defendants  had  posted  up  at  all 
the  stopping  places  of  their  coaches,  advertisements  in  respect 
to  their  line  of  stage-coaches,  containing  a  notice  "  all  bag- 
gage at  the  risk  of  the  owner  ;  "  and  that  such  an  advertise- 
ment was  posted  in  the  stage-house  at  Cherry-Valley,  where 
the  plaintiff  resided,  and  it  was  ateo  proved,  that  the  plaintiff 
had  knowledge  of  such  notice.  The  Judge  charged  the  jury 
that  the  defendants  were  bound  to  deliver  the  trunk  to  the 
plaintiff  on  the  arrival  of  the  coach  at  Madison,  notwith- 
standing the  usage  not  to  remove  trunks  and  baggage  when 
the  coaches  were  not  changed,  unless  at  the  request  of  pas- 
sengers ;  inasmuch  as  there  was  no  proof  that  the  plaintiff 
had  notice  of  such  usage,  or  of  the  fact  that  the  coaches 
were  not  changed  at  Madison.  BRONSON,  J.  :  —  "  The  de- 
fendants insist  that  they  were  only  carriers  of  the  trunk  to 
Madison,  and  were  not  bound  to  take  it  from  the  coach,  or 
deliver  it  at  that  place,  without  a  notice  or  request  from  the 
passenger.  In  the  form  in  which  the  objection  was  taken 
on  the  trial,  it  seemed  to  be  thought  important  that  the  trunk 
was  not  booked,  nor  entered  in  the  way-bill ;  and  that  it 
was  not  labelled  or  directed  to  any  particular  person  or 
place.  These  are  not  matters  of  which  the  defendants  can 
complain.  It  was  for  them,  and  not  for  the  plaintiff,  to 
determine  whether  the  trunk  should  be  mentioned  in  their 
books,  or  entered  on  the  way-bill ;  and  whether  they  would 


CH.  VIII.]  DELIVERY  BY. 

carry  the  trunk  without  a  label  or  direction,  was  also  a 
matter  for  their  consideration  when  the  contract  was  made. 
Having  assumed  the  responsibility  of  carrying  the  property, 
it  is  not  for  them  to  object  that  they  did  not  adopt  all  proper 
precautions  to  guard  against  accidents.  If  the  plaintiff  on 
request  had  neglected  or  refused  to  comply  with  any  reason- 
able regulation  of  the  defendants,  it  would  have  presented 
a  different  question.  But  nothing  was  required  of  him  but 
the  usual  fare,  and  that  was  paid.  In  considering  whether 
the  defendants  are  answerable  for  not  delivering  the  trunk 
at  Madison,  it  is  important  to  notice  that  no  fraud  or  inten- 
tional concealment  is  imputed  to  the  plaintiff.  Nothing  of 
the  kind  was  pretended  on  the  trial.  The  plaintiff  was  a 
youth,  then  probably  leaving  his  parents  for  the  first  time  to 
enter  a  public  school.  Wanting  experience  as  a  traveller, 
and  having  his  thoughts  engrossed  with  other  subjects,  he 
forgot  his  baggage  until  the  coach  had  departed.  This  was 
the  whole  extent  of  his  error.  If  the  cause  turned  on  the 
want  of  diligence,  there  would  perhaps  be  some  difficulty 
in  saying  which  party  ought  to  bear  the  loss  ;  though  my 
opinion  would,  in  that  view  of  the  case,  be  against  the  de- 
fendants. They  certainly  were  not  without  fault.  They 
might  have  mentioned  the  trunk  as  well  as  the  passenger  on 
the  way-bill,  and  thus  have  advised  their  coachman  and 
agents  that  the  plaintiff  had  baggage  to  be  removed  at 
Madison.  As  this  precaution  was  omitted,  it  was  the  duty 
of  the  driver,  if  he  did  not  know  how  the  fact  was,  to 
inquire  of  a  passenger  leaving  the  coach,  whether  he  had 
baggage  to  be  removed.  But  there  was  a  further  and  most 
culpable  neglect  of  duty  in  not  pursuing  after  the  coach,  when 
the  plaintiff  missed  his  baggage.  The  coach  had  been  gone 
but  a  short  time,  and  at  the  rate  it  was  travelling  might 
easily  have  been  overtaken.  The  plaintiff  was  among 
strangers,  and  had  no  means  of  pursuing.  He  applied  to 
Wilbur,  the  coachman  who  had  driven  to  Madison,  to  go 
after  the  stage,  and  was  answered  that  he  had  no  horse. 
The  answer  was  false,  for  the  horses  had  been  exchanged  at 


324  LAW    OF   CARRIERS.  [CH.  VIII. 

thai  place.  Goodwin,  the  defendants'  agent,  was  absent. 
The  plaintiff  applied  to  his  son,  but  he  declined  doing  any 
thing.  He  also  applied  to  the  keeper  of  the  stage-house, 
but  with  no  better  success.  The  defendants  select  their  own 
servants,  and  are  answerable  for  their  defaults.  The  coach- 
man was  chargeable  with  gross  negligence  for  not  pursuing 
and  recovering  the  property.  He  probably  thought  more  of 
the  saving  clause  in  the  advertisement,  '  all  baggage  at  the 
risk  of  the  owner,'  than  he  did  of  the  suffering  traveller." 
COWEN,  J :  "If  the  carrier  will  depend  on  the  care  of  the 
owner,  (and  I  admit  there  is  often  a  necessity  for  it  under 
every  responsibility,)  he  certainly  may  do  so ;  but  it  is  a 
solecism  to  say  he  is  a  common  carrier,  while  we  deny  the 
very  duty  which  is  essential  to  that  character.  A  mere 
chalk  mark  and  the  dash  of  a  pen  upon  the  way-bill  would 
in  most  cases  avoid  all  risk ;  and  it  would  be  strange,  in- 
deed, that  the  omission  of  an  easy  precaution  should  be 
deemed  by  the  law  equivalent  to  the  act  of  God.  It  is 
really  too  much  like. gross  negligence.  The  owner  many 
times  cannot  reach  the  baggage  room  on  account  of  the 
crowd ;  and  if  you  demand  that  he  should  mention  or  call 
for  it,  you  require  an  exertion  of  body  or  lungs,  to  which 
few  would  be  equal  under  all  emergencies.  Beside,  he  may 
not  know  whom  to  address.  Are  you  bound  to  mark  the 
direction  yourself  ?  The  carrier  knows  the  stopping  place, 
which  is  perhaps  resolved  on  at  the  moment,  and  he  holds 
the  way-bill.  If  the  article  be  not  properly  directed  and 
entered,  let  him  wait  till  both  be  done,  or  refuse  for  that 
reason  to  undertake  what  he  cannot  perform,  if  there  be  not 
time  to  affix  the  proper  marks.  He  knows  what  marks  and 
entries  will  accord  with  his  system  of  business,  and  be  in- 
telligible to  his  agents  on  the  line.  All  this  care  belongs  in 
good  reason,  where  the  law  has  placed  it,  with  the  carrier 
himself.  The  question  is  one  of  simple  custody,  for  care 
follows  custody.  This  has  been  held  of  an  innkeeper, 
whose  obligation  is  much  like  that  of  a  carrier,  and  stands 
upon  the  same  reason.  2  Kent's  Comm.  591,  3d  edit.  He 


CH.  VIH.]  DELIVERY   BY.  325 

is  liable  for  all  the  goods  which  his  guest  brings  with  him  to 
the  inn,  even  though  he  hold  the  key  of  his  chamber  where 
the  goods  are.  Story  on  Bailm.  §  479 ;  2  Kent,  Comm.  593, 

594,  3d  edit.     But  if  he  take  the  exclusive  custody  of  the 
goods,  or  positively  interfere  with  them  so  as  to  put  them  in 
peril,  or  deliver  them  to  a  third  person  for  custody,  the  inn- 
keeper is  exonerated.     Story  on  Bailm.  §  483  ;  2  Kent,  Com. 

595,  3d  edit.     '  It  appears  to  me,'  said  Bayley,  J.,  in  Rich- 
mond v.  Smith,  8  Barn.  &  Cress.  9,  '  that  an  innkeeper's 
liability  very  closely  resembles  that  of  a  carrier.      He  is 
prima  facie  liable  for  any  loss  not  occasioned  by  the  act  of 
God  or  the  king's  enemies,  although  he  may  be  exonerated 
where  the  guest  chooses  to  have  his  goods  under  his  own 
care.'     The  analogy  was  in  some  measure  extended  to  the 
carrier  by  the  case  of  Miles  v.  Cattle,  6  Bing.  743.     The 
plaintiff,  a  passenger,  had  with  him  his  own  bag  of  clothes 
in  the  coach,  into  which  bag  he  slipped  a  £50  bank  note 
belonging  to  another,  who  had  directed  it  to  be  booked  at 
the  carrier's  office.     It  could  not  have  been  booked  without 
a  reward.     The  plaintiff  thus  had  it  in  his  exclusive  cus- 
tody, and  therefore  it  was  held  that  he  should  not  recover. 
In  another  respect  the  case  was  like  that  before  us.     At 
York,  his  place  of  destination,  he  got  out  of  the  coach  and 
walked  away,  and  was  gone  two  hours ;  yet  the  point  was 
not  even  made,  that  he  should  for  that  reason  fail  to  recover 
for  his  bag  and  clothes,  which  had  been  purloined  with  the 
note  during  his  absence.     And  this,  though  the  case  was 
stronger  for  a  point  of  gross  neglect  than  the  present ;  for  he 
retained  the  actual  though  not  the  exclusive  custody  of  his 
bag.     In  the  case  before  us  the  regular  fare  was  paid  for  the 
plaintiff  and  his  baggage ;  and  the  trunk  probably  placed  in 
the  usual  separate  department."     But  NELSON,  C.  J.,  dis- 
sented from  the  opinion  of  the  other  two  Judges,  in  so  far 
as  they  resolved,  that  the  proprietors  of  a  stage-coach  were 
responsible  for  the  loss  of  a  trunk,  although  the  passenger, 
after  his  arrival  at  the  end  of  the  journey,  permitted  the 
coach  to   proceed  on  without   an   inquiry  after  his   trunk, 

28 


326  LAW   OF    CARRIERS.  [CH.  VIII. 

and  was  silent  on  the  subject  for  an  hour  after  the  coach 
left.1 

§  319.  The  obligation  of  the  carrier  safely  to  deliver  bag- 
gage was  in  the  above  case  of  Cole  v.  Goodwin,  sought  to 
be  qualified  by  usage,  and  ia  reference  to  this  ground  of 
defence,  BRONSON,  J.,  said :  "  The  defendants  set  up  a  usage 
in  managing  their  line  of  stages,  to  discharge  themselves 
from  liability  for  the  loss  of  the  trunk.  The  usage  proved 
amounts  to  this :  At  Richfield  and  Bridgewater,  where  the 
coaches  are  changed,  the  baggage  is  removed  as  a  matter  of 
course ;  but  at  Madison,  where  the  coaches  are  not  changed, 
they  only  remove  baggage  at  the  request  of  the  passenger. 
How  is  the  traveller  to  learn  this  practice  of  the  defendants, 
which  is  different  at  the  two  ends  of  a  single  stage,  except 
by  that  kind  of  experience  which  the  plaintiff  has  acquired  ? 
There  is  no  evidence  that  he  knew  any  thing  about  this 
practice.  And  besides,  the  usage  only  proves  that  the  de- 
fendants have  been  habitually  careless  in  managing  their 
business.  It  does  not  go  far  enough.  They  should  have 
established  a  usage  to  be  exempt  from  the  legal  consequences 
of  their  negligence."  COWEN,  J.  said  of  the  obligation  safely 

1  See  ante,  §  114.  In  Richards  v.  London  and  South  Coast  Railway 
Co.  the  declaration  stated,  that  the  defendants  were  common  carriers  for 
hire  on  a  railway  from  W.  to  S.  ;  that  the  plaintiff's  wife  was  received  as 
a  passenger,  with  her  dressing  case  and  other  luggage,  to  be  conveyed 
from  W.  to  S.,  and  there  safely  delivered  to  the  plaintiffs  for  reasonable 
reward.  Breach,  that  the  defendants  did  not  use  due  care  in  the  convey- 
ance, but  that,  by  their  carelessness  and  negligence,  the  dressing  case  was 
lost.  The  evidence  was,  that  the  plaintiff's  wife  was  received  at  W.  as  a 
passenger  to  S.,  and  the  dressing  case  was  placed  in  the  same  carriage 
with  herself;  that,  on  arriving  at  S.  she,  being  in  a  weak  state  of  health, 
was  carried  to  a  hackney  coach,  and  her  luggage  was  removed  thither  by 
the  defendants'  servants,  and  the  dressing  case  was  never  seen  after  leav- 
ing the  railway  carriage.  It  was  held,  that  the  evidence  supported  the 
declaration ;  that  the  duty  of  the  defendants  to  deliver  was  charged,  and 
they  had  not  delivered  ;  and  it  was  also  held,  that  it  was  not  necessary  to 
prove  negligence,  although  it  was  charged.  13  Jur.  986,  and  Law  Rep. 
for  February,  1850,  p.  531, 


CH.  VIII.]  DELIVERY   BY. 

to  deliver :  "  This  obligation  is  sought  to  be  qualified  by  a 
usage  of  the  defendants'  line,  to  which  the  plaintiff  is  a  total 
stranger.  t  Indeed,  in  the  absence  of  knowledge  of  the  usage, 
he  is  told  that  the  charge  of  the  baggage  belonged  to  himself; 
and  that,  by  silently  departing  from  the  stage  at  Madison, 
with  apparent  unconcern,  he  improperly  lulled  the  driver 
into  a  state  of  carelessness.  It  is  an  answer,  that  all  this 
was  avoidable  by  a  little  seasonable  caution ;  and  I  have  yet 
to  learn,  that  when  a  common  carrier  is  called  to  account  for 
losses,  the  passenger  is  to  be  answered  by  his  own  want  of 
care.  It  is  placing  the  obligation  upon  the  wrong  man. 
The  passenger  has  surrendered  the  custody  of  his  baggage 
to  the  coach  owners,  whose  obligation  is  absolute ;  and  the 
law  will  not  endure  that  they  should  answer  either  by  the 
utmost  care  in  themselves,  or  the  want  of  it  in  another.  I 
speak  independent  of  all  usage ;  for  none  is  brought  to  the 
knowledge  of  the  plaintiff.  The  carrier  must  take  measures 
at  his  peril  to  learn  and  abide  by  the  place  of 'his  delivery, 
either  as  fixed  by  law,  or  at  the  utmost  by  the  established 
and  notorious  usage  of  the  line ;  such  usage  being-  known  to 
the  passenger." 

§  320.  Although  the  arrival  of  the  baggage  at  its  place  of 
destination  in  safety,  will  not  discharge  the  carrier  until  its 
delivery  to  the  owner,  still,  unless  demanded  within  a  rea- 
sonable time,  the  liability  of  the  carrier,  in  his  strict  character 
of  common  carrier,  will  not  continue.  There  may  be  cases, 
where,  at  some  time  after  the  arrival  at  the  place  of  desti- 
nation, the  strict  responsibility  of  the  common  carrier,  as 
such,  for  baggage  remaining  in  his  possession  undelivered, 
without  fault  or  neglect  of  his  own,  should  cease,  and  he 
would  then  continue  to  hold  them,  not  as  a  common  carrier, 
(that  is,  as  insuring  against  all  but  the  act  of  God,  &c.)  but 
as  a  mere  bailee  in  deposit,  gratuitously  or  otherwise,  ac- 
cording to  the  circumstances.1 

1  Powell  v.  Myers,  26  Wend.  (N.  Y.)  R.  591.  As  to  the  liability  as 
depending  on  circumstances,  see  ante,  §  304. 


328  LAW   OF   CARRIERS.  [cH.  VIII. 

§  321.  Common  carriers  of  passengers  and  their  baggage 
are  liable  for  the  baggage,  if  delivered  upon  a  forged  order, 
and  their  innocence  in  so  delivering  will  not  discharge  them. 
In  error  from  the  Supreme  Court  of  New  York,  Myers 
brought  an  action  in  the  Common  Pleas  against  Powell  and 
others  as  common  carriers,  for  the  loss  of  a  trunk  and  its 
contents,  taken  on  board  a  steamboat  owned  by  the  defend- 
ants, at  West  Point,  by  a  son  of  the  plaintiff,  who  at  the 
time  was  a  minor,  and  took  passage  in  the  boat  for  New 
York.  The  boat  usually  arrived  at  New  York  between  nine 
and  ten  o'clock  in  the  evening*  Shortly  before  arriving  at 
the  dock,  a  young  man  named  Pruyin,  (who  accompanied 
the  plaintiff's  son  from  West  Point,)  in  his  presence  inquired 
of  the  master  of  the  boat  whether  their  baggage  would  be 
safe  on  board  the  boat  during  the  night ;  who  answered 
that  it  would  be  perfectly  safe,  for  it  was  under  the  protec- 
tion of  a  watch  until  morning.  Passengers  occasionally 
stayed  on  board  during  the  night,  but  usually  left  the  boat 
on  arriving  in  the  city.  Pruyin  stayed  on  board,  but  the 
plaintiff's  son  left  the  boat  soon  after  its  arrival,  and  on  the 
next  morning  at  about  eight  o'clock  went  to  the  boat  for  his 
trunk,  and  then  learnt  that  it  had  been  delivered  on  a  forged 
order.  A  negro  man  had  come  on  board  and  presented  an 
order  for  the  trunk.  The  master  of  the  boat  pointed  it  out 
to  the  negro.  Pruyin,  who  was  present,  observed,  that  the 
trunk  had  been  left  in  his  charge.  The  master  of  the  boat 
said  there  was  an  order  for  it,  when  Pruyin  said,  "  very 
well,"  and  told  the  negro  to  take  it.  The  Judge  charged 
the  jury,  that  the  defendants  were  responsible  for  the  de- 
livery of  the  baggage  of  travellers  in  their  boat,  unless  lost 
by  inevitable  accident ;  that  if  the  trunk  had  not  been  deliv- 
ered to  the  passenger,  and  was  not  so  lost,  the  defendants 
remained  liable,  even  after  the  arrival  of  the  boat  at  the 
wharf.  To  which  charge  the  counsel  for  the  defendants 
excepted.  The  jury  found  a  verdict  for  the  plaintiff,  on 
Avhich  judgment  was  rendered  ;  which  judgment  was  af- 
firmed by  the  Supreme  Court,  on  the  ground  that  this  case 


CH.  VIII.] 


DELIVERY   BY. 


329 


was  not  distinguishable  from  Cole  v.  Goodwin,  and  Hollister 
v.  Nowlen.  The  defendants  removed  the  record  into  the 
Court  of  Errors,  by  writ  of  error,  where  the  judgment  of 
the  Supreme  Court  was  affirmed.1 

§  322.  Although  it  makes  no  difference,  as  to  the  respon- 
sibility of  the  carrier,  that  the  owner  of  the  baggage  goes 
with  it ;  or  that  it  is  accompanied  by  his  servant ;  yet  the 
carrier  is  not  responsible  for  a  safe  delivery  if  an  article  of 
baggage  which  the  owner  has  kept  entirely  within  his  own 
custody,  as  for  instance,  an  overcoat  not  delivered  to  the 
carrier,  and  left  by  the  passenger  on  a  seat  in  the  vehicle.2 

§  323.  A  delivery  of  the  goods  to  a  duly  authorized  agent 
of  the  owner  or  consignee  is  of  course  a  sufficient  delivery.3 
But,  in  an  action  for  non-delivery,  if  the  defence  is,  that  a 
delivery  was  made  to  an  agent,  it  must  be  clearly  proved 
that  the  person  to  whom  the  goods  were  delivered  as  agent 
was  duly  authorized  as  such.  In  Ostrander  v.  Brown,4  the 
goods  were  taken  away  from  the  wharf  where  they  were 
landed,  without  the  direction  of  the  consignee,  by  a  cartman 
usually  or  always  employed  to  transport  his  goods;  yet  this 
was  held  not  to  be  evidence  of  a  delivery,  as  the  cartman 
was  not  to  be  deemed  the  general  agent  of  the  consignee  for 
receiving  his  goods.  "  Because,"  said  the  Court,  "  a  mer- 
chant usually  selects  a  cartman,  and  employs  him  exclusively 
in  carrying  goods,  according  to  his  orders,  it  by  no  means 
follows,  that  such  cartman  is  his  general  agent  for  receiving 
goods  without  orders." 


1  Powell  t>.  Myers,  26  Wend.  (N.  Y.)  R.  591. 

2  Ante,  §  113  ;  and  as  to  what  amounts  to  a  delivery  to  a  carrier,  see 
Chap.  V.  $  140-  142.     And  see  further,  as  to  the  conveyance  of  passen- 
gers with  baggage,  and  the  delivery  of  the  latter,  ante,  §  107-  117. 

3  D'Anjou  v.  Ball,  3  H.  &  John.  (Md.)  R.  206;  Lewis  v.  Western 
Railroad  Co.  11  Met.  (Mass.)  R.  509  ;  and  ante,  $  146. 

4  Oslrander  v.  Brown,  15  Johns.  (N.  Y.)  R.  39. 

28* 


330  LAW   OF   CARRIERS.  [CH.  VIII. 

§  324.  The  carrier  is  under  as  much  obligation  to  deliver 
the  goods  to  the  right  person,  as  he  is  to  deliver  them  in  a 
reasonable  time  and  at  the  proper  place.  If  the  delivery  be 
to  the  wrong  person,  although  it  be  entirely  by  mistake,  or 
by  gross  imposition,  the  carrier  will  be  responsible  for  the 
value  of  the  goods  so  lost.  A  wrongful  delivery  in  respect 
to  the  person  is  indeed,  by  the  Common  Law,  treated  as  a 
conversion  of  the  property.1  Therefore,  as  has  appeared, 
a  delivery  of  goods  by  a  carrier  upon  a  forged  order  will 
not  discharge  him.2 

§  325.  When  the  carrier  fails  in  the  discovery  of  the 
person  mentioned  as  consignee,  his  duty  is  to  hold  the  goods 
in  some  way  for  the  use  of  the  consignor.3  In  Stephenson  v. 
Hart,4  the  plaintiff  having  been  imposed  upon  by  a  swindler, 
consigned  a  box  at  Birmingham  by  the  defendants,  as 
common  carriers,  to  J.  West,  27  Great  Winchester  Street, 
London.  The  defendants  found  that  no  such  person  resided 
there  ;  but  upon  receiving  a  letter  signed  J.  West,  requesting 
that  the  box  might  be  forwarded  to  a  public  house  at  St. 
Albans,  they  delivered  it  there  to  a  person  calling  himself 
West,  who  showed  that  he  had  a  knowledge  of  the  contents 
of  the  box ;  that  person  having  disappeared,  and  the  box 


1  Story  on  Bailm.  §  545  b  ;  The  Huntress,  (case  of)  Daveis,  (Dist.  Co.) 
R.  83.     Warehousemen  are  not  only  responsible  for  losses  which  arise  by 
their  negligence,  but  also  for  losses  occasioned  by  the  innocent  mistake  of 
themselves  and  of  their  servants,  in  making  a  delivery  of  the  goods  to  a 
person  not  entitled  to  them.     For  it  is  a  part  of  their  duty  to  retain  the 
goods  until  they  are  demanded  by  the  true  owner  ;  and  if,  by  mistake,  they 
deliver  the  goods  to  a  wrong  person,  they  will  be  responsible  for  the  loss, 
as  upon  a  wrongful  conversion.     Lubback  v.  Inglis,   1  Stark.  R.   104. 
The  Roman  Law  inculcated  a  like  duty,  says  Story,  Bailm.  §  450,  and 
illustrated  it  by  the  case  of  a  garment  delivered  to  a  fuller  to  dress,  which 
he  exchanged  by  mistake,  or  delivered  to  a  wrong  person,  and  held  him  in 
such  a  case  liable  for  the  loss.     Dig.  Lib.  19,  tit.  2,  §  6. 

2  Powell  v.  Myers,  26  Wend.  (N.  Y.)  R.  591  ;  and  ante,  $  321. 

3  Ante,  §  291,  295,  304. 

4  Stephenson  v.  Hart,  4  Bing.  R.  476. 


CH.  vni.] 


DELIVERY   BY. 


331 


having  been  originally  obtained  from  the  plaintiff  by  fraud, 
it  was  held  that  the  defendants  were  liable  to  him  in  an 
action  of  trover.  The  argument  which  had  been  raised  for 
the  defendants,  by  the  assertion  that  the  box  had  been  deliv- 
ered to  the  right  person,  was  answered,  said  Park,  J.,  by 
saying  that  a  felon  cannot  be  the  right  person ;  and  as  to  the 
defendant's  liability  to  an  action  at  the  suit  of  West,  till  it 
was  ascertained  that  the  bill  he  had  given  would  not  be 
honored,  such  an  action,  in  the  opinion  of  the  learned  Judge, 
might  have  been  well  defended  by  showing  that  the  box  was 
tendered  at  Great  Winchester  Street,  and  that  no  such  person 
was  known  there.  Burrough,  J.,  was  clear,  that  when  it 
was  discovered,  that  no  such  person  as  the  consignee  was  to 
be  found  in  Great  Winchester  Street,  that  contract  was  at  an 
end,  and  the  goods  remaining  in  the  hands  of  the  carriers  as 
the  goods  of  the  consignor,  a  new  implied  contract  arose 
between  the  carriers  and  the  consignor,  to  take  care  of  the 
goods  for  the  use  of  the  consignor.  The  circumstance,  said 
he,  that  no  such  person  as  the  consignee  was  ever  heard  of 
at  the  place  to  which  the  goods  were  addressed,  ought  to 
have  awakened  the  suspicions  of  the  defendants,  and  they 
were  guilty  of  gross  negligence  in  parting  with  them  without 
further  inquiry. 

§  326.  The  case  of  Duff  v.  Budd l  was  a  harder  case  than 
the  preceding  one  of  Stephenson  v.  Hart.2  There  the  plain- 
tiffs, having  received  an  order  from  a  stranger  to  furnish 
goods  for  J.  Parker,  of  High  Street,  Oxford,  and  finding, 
upon  inquiry,  that  Mr.  Parker,  of  High  Street,  was  a  trades- 
man of  respectability,  forwarded  the  goods  by  a  carrier, 
having  directed  them  to  J.  Parker,  High  Street,  Oxford.  On 
the  arrival  of  the  parcel  at  Oxford,  the  carrier's  porter  there, 
who  knew  W.  Parker,  of  High  Street,  (and  who  was  accus- 
tomed to  deliver  parcels  at  the  houses  of  the  consignees,) 

1  Duffv.  Budd,  3  Bro.  &  Bing.  R.  177. 

2  Per  Park,  J.,  in  Stephenson  v.  Hart,  ub.  sup. 


332  LAW    OP    CARRIERS.  [CH.  VIII. 

told  him  of  the  arrival  of  the  parcel,  no  other  Parker  resid- 
ing in  that  street.  W.  Parker  said  he  expected  no  parcel. 
A  person  to  whom  the  porter  had  before  delivered  parcels 
under  the  name  of  Parker,  called  at  the  defendant's  office 
shortly  afterwards,  and  saying  the  parcel  was  his,  was  al- 
lowed to  take  it  on  paying  the  carriage,  there  being  many 
persons  of  that  name  in  Oxford.  The  plaintiffs,  having  lost 
their  goods,  desired  the  defendant,  by  letter,  to  apprehend 
the  person  who  had  taken  them,  if  he  again  presented  him- 
self, and  afterwards  said  that  they  could  have  done  with  the 
defendant,  if  the  man  who  had  the  parcel  were  produced. 
The  plaintiffs,  having  sued  the  carrier,  and  the  Judge  having 
directed  the  jury  that  the  carrier's  negligence  had  been  such 
as  to  render  it  unnecessary  to  consider  the  question  as  to  the 
general  notice  of  the  carrier  limiting  his  responsibility  to  a 
certain  amount,  and  a  verdict  having  been  found  for  the 
plaintiffs,  the  Court  refused  to  grant  a  new  trial,  which  was- 
moved  for,  on  the  grounds  that  the  question  touching  the 
notice  ought  to  have  been  considered ;  that  the  Judge  ought 
to  have  pointed  the  attention  of  the  jury  to  the  plaintiffs' 
letter,  directing  the  carrier  to  apprehend  the  cheat,  and  the 
subsequent  conversations  thereon ;  and  that  the  property  of 
the  goods  had  passed  out  of  the  plaintiffs.  In  this  case,  the 
language  of  Richardson,  J.,  is  important,  who  said,  "  There 
was  clearly  a  property  in  the  plaintiffs  entitling  them  to  sue, 
as  they  had  been  imposed  upon  by  a  gross  fraud."  l 


1  Trover  will  lie  for  the  mis-delivery  of  goods  by  a  warehouseman, 
although  such  mis-delivery  occurred  by  mistake  only.  Devereux  v.  Bar- 
clay, 2  B.  &  Aid.  R.  702 ;  and  the  case  of  Youl  v.  Harbottle,  Peake's 
Cas.  49,  shows,  that  a  carrier  is  liable  in  trover  for  a  mis-delivery.  But 
there  is  a  great  distinction  between  an  omission  and  an  act  done.  Ross  v, 
Johnson,  5  Burr.  R.  28-27.  A.  undertook  to  carry  flour  for  B.  to  a  cer- 
tain place,  and  through  mistake,  deposited  by  the  way  a  part  of  the  flour, 
which  was  taken  away  by  C.  B.  refusing  to  receive  a  part  only,  C.  took 
the  remainder,  and  paid  A.  for  the  whole.  This  was  held  to  amount  to  a 
conversion  by  A.,  which  would  support  an  action  of  trover.  Bullard  v. 
Young,  3  S.  (Ala.)  R.  46. 


CH.  VIII.] 


NON-DELIVERY. 


333 


§  327.  SECONDLY.  As  to  what  will  excuse  or  justify  a  non- 
delivery of  the  goods  by  the  carrier.  After  what  has  been 
said  in  preceding  chapters,  it  is  hardly  necessary  here  to  say, 
that  it  is  a  sufficient  excuse  or  justification  for  a  common 
carrier  to  show,  that  the  goods  have  been  lost  by  the  act  of 
God  or  of  the  public  enemy,  and  without  negligence  or 
malfeasance  on  his  part ;  1  that  a  carrier  for  hire,  who  is 
not  a  common  carrier,  will  be  excused  for  the  same  omission, 
which  is  in  consequence  of  losses  which  are  not  the  result  of 
ordinary  negligence  ;  2  and  that  a  carrier  without  hire  will  be 
excused  in  case  of  loss,  if  it  has  not  happened  from  his  gross 
negligence.3  In  respect  to  common  carriers  it  may  also  be 
said,  that  in  cases  of  special  limitation  of  responsibility,  it  is  a 
sufficient  excuse  for  non-delivery,  that  the  loss  arose  by  other 
perils  than  the  act  of  God,  &c.,  against  which  he  did  not 
insure,  and  under  circumstances  which  do  not  subject  him  to 
the  charge  of  ordinary  negligence.4 

§  328.  So  a  non-delivery  will  be  excused  where  goods 
have,  from  actual  necessity,  been  thrown  overboard  to 
lighten  a  vessel  and  to  preserve  the  lives  of  the  crew  and 
passengers  ;  as  in  the  instances  which  have  already  been 
given  ;  5  and  also  as  in  the  case  of  the  steamer  Missouri,  a 
new  and  seaworthy  boat,  which  encountered  a  severe  gale 
on  Lake  Huron,  and  after  long  struggling  with  the  tempest, 
the  master  and  crew  thought  it  necessary  to  lighten  her,  in 


1  Ante,  Chap.  VI. 

2  Ante,  Chap.  III.     The  driver  of  a  stage-coach,  having  received  money 
to  carry,  the  burden  of  proof  is  on  him  to  excuse  a  non-delivery  ;  and 
evidence  to  show  that  third  persons  have  admitted  that  another  package 
of  money  was  stolen  from  the  stage  on  the  same  day  when  he  received 
the  money  in  question,  is  not  competent  evidence  to  be  submitted  to  the 
jury  to  prove  a  loss.     Sheldon  v.  Robinson,  7  N.  Hamp.  R.  157. 

3  Ante,  Chap.  II. 

4  Ante,  Chap.  VII. 

5  Ante,  §  215. 


334  LAW   OF   CARRIERS.  [CH.  VIII. 

order  to  save  her  with  her  freight  and  passengers.1  And  so 
likewise  may  a  carrier  show,  in  justification  of  non-delivery, 
that  the  goods  have  perished  from  some  inherent  defect,  and 
not  by  any  fault  of  his  ;  2  or  that  the  nature  and  value  of  the 
goods  were  not  disclosed  to  the  carrier,  and  in  consequence 
of  which  he  did  not  bestow  upon  them  that  degree  of  care 
and  attention  which  he  would  have  done,  if  not  thus  impro- 
perly kept  in  ignorance  by  his  employer.3 

§  329.  A  carrier  by  water  will  be  excused  for  non-delivery, 
if  it  has  been  occasioned  by  the  illegal  act  of  the  shipper.4 
Goods  on  board  a  vessel  may  be  forfeited  by  the  illegal  act 
of  the  shipper,  and  if  so,  and  they  are  seized  for  the  for- 
feiture, the  carrier  is  discharged  from  his  obligation  to 
deliver.  But  still,  a  mere  seizure,  for  a  supposed  forfeiture, 
and  without  justifiable  cause,  will  not  discharge  him  ;  for 
if  he  is  a  common  carrier,  he  is  still  bound  by  his  under- 
taking to  carry  and  deliver,  as  an  insurer  against  all  losses 
but  those  happening  from  the  act  of  God  and  the  public 
enemy.5 

§  330.  The  carrier  will  be  excused  for  a  non-delivery  of 
the  goods  at  the  place  of  their  destination,  by  an  agreement 
or  any  act  of  the  owner  or  shipper  which  discharges  the 
carrier  from  any  further  responsibility.6  The  goods  may, 
with  the  consent  of  the  owner  or  shipper,  be  delivered  over 
to  another  carrier,  or  be  deposited  at  an  intermediate  place 
to  await  future  orders.7  In  an  action  to  recover  damages 
alleged  to  have  been  caused  by  the  defendant's  negligence  in 

1  Rossiter  v.  Chester,  1  Doug.  (Mich.)  R.  154.     See  also  Halwersen  v. 
Cole,  1  Spears,  (S.  C.)  R.  321. 

2  Ante,  §  210,  211. 

3  Ante,  $  258,  et  seq. 

4  Story  on  Bailm.  $  579. 

5  Gosling  v.  Higgins,  1  Campb.  R.  451  ;  and  see  ante,  §  193. 

6  Story  on  Bailm.  $  578. 
'  Ibid. 


CH.  VIII.]  NON-DELIVERY. 

the  delivery  of  a  block  of  marble,  it  was  held,  that  if  A. 
for  whom  the  marble  is  transported  by  a  railroad  company, 
authorizes  B.  to  receive  the  delivery  thereof,  and  to  do  all 
acts  incident  to  the  delivery  and  transportation  thereof  to  A., 
and  B.  instead  of  receiving  the  marble  at  the  usual  place  of 
delivery,  requests  the  agent  of  the  company  to  permit  the 
car,  which  contains  the  marble,  to  be  hauled  to  a  near  depot 
of  another  railroad  company,  and  such  agent  assents  thereto, 
and  assists  B.  in  hauling  the  car  to  such  depot,  and  B. 
there  requests  and  obtains  leave  of  that  company  to  use  its 
machinery  to  remove  the  goods  from  the  car  ;  then  the  com- 
pany that  transported  the  goods  is  not  answerable  for  the 
want  of  care  or  skill  in  the  persons  employed  in  so  removing 
the  marble  from  the  car,  nor  for  the  want  of  strength  in  the 
machinery  used  for  the  removal  of  the  same,  and  cannot  be 
charged  with  any  loss  that  may  happen  in  the  course  of 
such  delivery  to  A.1 

§  331.  Subsequent  directions  to  the  carrier,  as  to  the  place 
of  delivery,  will  excuse  a  non-delivery  at  the  place  of  their 
original  destination.  So  if  the  original  destination  of  goods 
is  altered  by  the  plaintiff  or  his  agent,  instructing  the  carrier 
to  take  the  advice  left  with  a  certain  person  at  the  original 
destination,  whether  they  were  to  go  to  L.  or  B.,  and  the 
carrier  finds  no  advices  left  for  him,  and  then  carries  the 
goods  to  L.,  where  he  stores  them,  taking  a  receipt  of  the 
receiver,  which  the  carrier  duly  transmits  to  the  shipper,  the 
carrier  is  not  liable  for  non-delivery  or  negligence.2 

§  332.  If  the  owner  or  shipper  is  induced  from  any  cause 
to  accept  the  goods  short  of  the  place  to  which  they  were  at 
first  intended  to  be  conveyed,  the  carrier  is  not  only  dis- 
charged from  further  liability,  but  is  entitled  to  a  pro  rata 
compensation  for  the  transportation  as  far  as  it  has  been 

1  Lewis  v.  Western  Railroad  Company,  11  Met.  (Mass.)  R.  509. 
8  Boyle  v.  M'Laughlin,  4  H.  &  Johns.  (Md.)  R.  291. 


336  LAW   OF   CARRIERS.  [CH.  VIII. 

continued.  In  Parsons  v.  Hardy,1  the  suit  was  brought  to 
recover  the  price  of  transportation  of  a  quantity  of  merchan- 
dise from  Albany  to  Ithaca.  The  plaintiff  proceeded  with 
his  load  until  he  arrived  at  the  lock  on  the  canal  near 
Montezuma,  which  he  was  prevented  from  passing  in  conse- 
quence of  ice  in  the  canal,  and  winter  setting  in,  he  landed  his 
load  and  put  it  in  charge  of  the  lock-tender,  from  xvhom  the 
defendants  received  it,  and  transported  it,  at  their  expense, 
to  Ithaca.  It  was  held,  that  although  the  carrier  was  re- 
sponsible for  the  final  delivery  of  the  merchandise  in  safely, 
yet  the  defendants,  by  accepting  the  goods  at  Montezuma, 
discharged  the  carrier  from  further  responsibility,  and  be- 
came liable  to  pay  him  a  pro  rata  compensation  for  the 
transportation  to  that  point.  So  in  Hunt  v.  Haskell,2  where 
a  common  carrier  by  sea  engaged  to  deliver  goods  at  a  place 
named  for  a  stipulated  sum  as  freight,  and  the  owner  re- 
ceived his  goods  before  they  arrived  at  the  place  appointed 
in  the  bill  of  lading,  it  was  held,  that  the  carrier  was  excused 
from  delivery  at  the  place  first  intended,  and  is  entitled  to  a 
pro  rata  freight.  In  Lorent  v.  Steinrnitz,3  it  was  held,  that 
the  owner  of  goods  on  freight  may  authorize  their  delivery  at 
an  intermediate  port ;  or  if  supervenient  causes  render  the 
landing  of  the  goods  at  such  port  necessary,  and  he  accepts 
them  there,  the  carrier  is  discharged,  and  is  entitled  to 
freight  pro  rata.  The  owner  of  goods  was  held,  by  the 
Supreme  Court  of  Michigan,  to  have  voluntarily  accepted 
them  at  an  intermediate  port,  when,  knowing  that  the  voy- 
age had  been  abandoned,  (its  further  prosecution  having 
become  impossible,  or  extremely  hazardous,)  he  there  de- 
manded his  goods  from  the  agents  of  the  forwarders  with 
whom  they  were  stored,  tendering  payment  of  their  charges 
for  storage.4 


1  Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  R.  215. 

2  Hunt  v.  Haskell,  11  Shep.  (Me.)  R.  339. 

3  Lorent  v.  Steinmitz,  1  Nott  &  M'Cord,  (S.  C.)  R.  132. 

4  Rossiter  v.  Chester,  1  Doug.  (Mich.)  R.  154. 


CH.  VHI.]  NON-DELIVERY.  337 

§  333.  But  the  acceptance  of  the  goods  at  a  place  short  of 
the  place  of  delivery  at  first  intended,,  taken  in  the  abstract, 
will  not  discharge  the  carrier.  To  have  that  effect  the  goods 
must  be  accepted,  or,  in  other  words,  taken  out  of  the 
custody  of  the  carrier,  before  any  cause  of  action  has  arisen, 
by  reason  of  any  negligence  imputable  to  the  carrier.  No- 
thing, in  fact,  is  better  settled  than  that,  after  an  injury  has 
been  committed,  the  cause  of  action  cannot  be  discharged  by 
any  act  short  of  a  release,  or  acceptance  of  something  in 
satisfaction.1 


1  Bowman  v.  Teall,  23  Wend.  (N.  Y.)  R.  306.  This  was  an  action 
on  the  case,  brought  against  the  defendants,  as  common  carriers,  in  the 
transportation  of  one  thousand  bushels  of  salt,  which  they  had  undertaken 
to  carry  from  New  York  to  Albany.  The  salt  was  received  by  the  de- 
fendants at  New  York,  on  board  of  a  lake  boat,  which  was  towed  by  a 
steamboat  as  far  as  Red  Hook,  when  she  was  cast  off  by  the  steamboat  in 
consequence  of  the  obstruction  of  ice  in  the  river.  The  lake  boat  was, 
however,  worked  up  as  far  as  Catskill,  and  there  left  by  the  master  in 
charge  of  a  person  employed  by  him.  The  plaintiff  and  one  of  the  defend- 
ants were  at  Catskill  on  Friday,  and  saw  the  salt.  The  plaintiff  on  that 
occasion  told  one  B.,  a  resident  of  Catskill,  that  he  and  Teall  were  going 
to  Hudson  to  sell  the  salt,  and  that  if  he  (B.)  did  not  hear  from  him  before 
the  following  Monday,  to  tak«  the  salt  and  store  it.  The  boat  sprung  a 
leak  on  Saturday  night,  when  B.  took  out  the  salt  and  stored  it.  Sub- 
sequently he  removed  it  to  another  place,  where,  during  the  winter,  it  was 
overflowed  by  a  freshet,  and  the  principal  part  of  it  melted.  There  was 
evidence  tending  to  show  negligence  in  starting  the  salt  from  New  York, 
and  afterwards  in  not  getting  the  boat  up  from  Catskill.  The  Judge  was 
requested  to  charge,  that  if  the  jury  believed  the  plaintiff  received  the  salt, 
or  exercised  any  dominion  over  it,  or  gave  any  direction  at  Catskill  con- 
cerning it,  this  defeated  the  action  ;  and  that  if  they  believed  B.  directed 
the  salt  to  be  stored,  that  would  have  the  effect  to  defeat  the  plaintiff. 
Both  requests  were  held  by  Cowen,  J.,  who  gave  the  opinion  of  the 
Court,  to  be  founded  on  principles  entirely  false.  If  the  Judge,  said  he, 
charged  as  he  was  desired  to  do,  the  jury  might  have  been  entirely  cut  off 
from  the  consideration  of  two  important  questions ;  one,  whether  the  de- 
fendants had  been  guilty  of  negligence  in  not  transporting  the  salt  to 
Albany  ;  and  the  other,  as  to  negligence  in  their  manner  of  causing  it  to 
be  stored  for  the  winter.  The  carrier,  he  said,  was  bound  to  exercise 
ordinary  forecast  in  anticipating  the  obstruction  ;  to  exert  the  proper 
means  for  overcoming  it ;  and  to  exercise  due  diligence  in  accomplishing 
29 


338  LAW   OF   CARRIERS.  [CH.  VIII. 

§  334.  If  the  owner  of  the  goods  merely  accompanies 
them  in  their  transit,  it  will  not  excuse  a  non-delivery, 
unless  he  has  the  exclusive  custody  of  them.1  And,  although 
interference  by  the  owner  by  giving  directions,  may,  under 
circumstances,  be  evidence  of  an  acceptance,  it  is  never  an 
acceptance  of  itself.2 

§  335.  If  the  goods  are  by  the  real  owner  taken  from  the 
possession  of  the  carrier,  will  it  afford  an  excuse  for  non-deliv- 
ery to  the  bailor  ?  3  In  general,  the  carrier  is  not  permitted  to 
dispute  the  title  of  the  person  who  delivers  the  goods  to  him, 
and  such  is  clearly  the  rule  when  an  adverse  claim  is  not 
asserted  by  the  real  owner,  but  is  merely  asserted  by  the  car- 
rier of  his  own  mere  motion.4  It  was  formerly  considered  that 
if  an  adverse  title  was  asserted  by  a  superior  claimant,  and 
the  carrier  had  due  notice  of  it,  and  was  forbidden  to  deliver 
to  the  bailor,  he  might  protect  himself  from  responsibility, 
and  set  up  such  title  against  the  bailor.  Thus  it  was  held 
in  Ogle  v.  Atkinson,5  that  a  warehouse-man  receiving  goods 
from  a  consignee,  who  has  had  actual  possession  of  them,  to 
be  kept  for  his  use,  may  nevertheless  refuse  to  re-deliver 
them,  if  they  are  the  property  of  another,  and  the  latter 


the  transportation ;  and  must  not,  in  the  mean  time,  be  guilty  of  negli- 
gence in  taking  care  of  the  property  detained.  But  that  none  of  these 
matters,  in  the  form  proposed,  would  have  been  admissible,  even  in  miti- 
gation of  damages. 

1  Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  419;  and  see  ante,  §  113, 
322. 

2  Bowman  v.  Teall,  ub.  sup.     The  general  principle  was  adopted  in 
Todd  v.  Fingley,  7  Watts,  (Penn.)  R.  542,  that  if  injury  happen  to  prop- 
erty in  the  hands  of  a  bailee,  the  interference  of  the  bailor  to  remedy  the 
evil,  will  not  release  the  bailee  from  liability  for  the  consequence  of  his 
negligence. 

3  See  Shelby  v.  Scotchford,  Yelv.  R.  23  ;  Wilson  v.  Anderton,  1  B.  & 
Ad.  R.  450  ;  King  v.  Richards,  6  Whart.  (Penn.)  R.  418. 

4  See  Story  on  Agency,  §  217  ;  Story  on  Bailm.  §  582  ;  King  v.  Rich- 
ards, ub.  sup. 

5  Ogle  v.  Atkinson,  5  Taunt.  R.  759. 


CH.  VIII.]  NON-DELIVERY.  339 

prohibits  the  re-delivery.  But  this  doctrine  seems  now  to  be 
untenable,1  and  it  is  said  that,  in  general,  an  agent  has  no 
right  to  set  up  an  adverse  title  against  that  of  his  principal, 
and  that  the  bailee  is  bound  to  deliver  the  goods  back  to  the 
person  by  whom  he  has  been  intrusted  with  the  custody  of 
them.2  The  carrier  may,  therefore,  be  placed  in  a  situation 
in  which  he  cannot  safely  deliver  the  goods  to  either  party. 
For  where  the  adverse  title  is  made  known  to  the  carrier,  if 
he  is  forbidden  to  deliver  the  goods  to  any  other  person,  he 
acts  at  his  peril ;  and  if  the  adverse  title  is  well  founded, 
and  he  resists  it,  he  is  liable  to  an  action  for  the  recovery  of 
the  goods  by  the  person  setting  up  such  adverse  title.3  But 
the  situation  of  the  bailee  is  not  one  without  remedy.  He 
is  not  bound  to  ascertain  who  has  the  right,  and  he  may  file 
a  bill  of  interpleader  in  a  Court  of  Equity.  If  the  bailee 
forbears  to  adopt  that  mode  of  proceeding,  and  makes  him- 
self a  party,  by  retaining  the  goods  for  the  bailor,  he  must 
stand  or  fall  by  his  title.4 

§  336.  An  exception,  however,  is  allowed  where  the  prin- 
cipal has  obtained  the  goods  fraudulently  or  tortiously  from 
a  third  person.6  In  Hardman  v.  Willcock,6  the  defendant 
was  employed  to  sell,  as  an  auctioneer,  certain  goods  then 
in  the  plaintiff's  possession.  Before  the  sale  a  notice  was 
given  to  the  defendant  by  the  assignees  of  an  insolvent,  that 
the  goods  were  their  property,  as  such  assignees,  and  that 
they  had  been  fraudulently  removed  by  collusion  between 


1  Story  on  Bailm.  §  450,  582. 

2  Story  on  Agency,  §  217  ;  Gosling  v.  Birney,  7  Bing.  R.  339  ;  Kieran 
v.  Sanders,  6  Adol.  &  Ell.  R.  516  ;  Holl  u.  Griffin,  10  Bing.  R.  246. 

3  Story  on  Bailm.  §  450,  582  ;  Taylor  w.  Plummer,  3  M.  &  Selw.  R. 
562  ;  Wilson  v.  Anderton,  1  B.  &  Adol.  R.  450 ;    Story,  Eq.  Jurisp. 
§814-816. 

4  Per  Lord  Tenterden,  C.  J.,  in  Wilson  v.  Anderton,  ub.  sup. ;  Com. 
Dig.  Chancery,  3  T. 

5  Story  on  Agency,  §  217. 

6  Hardman  v.  Willcock,  9  Bing.  R.  378,  note. 


340  LAW    OF    CARRIERS.  [CH.  VIII. 

the  plaintiff  and  the  insolvent.  At  the  trial,  the  jury  affirmed 
the  right  of  the  assignees,  and  upon  the  state  of  facts  as 
found  by  the  jury,  they  were  directed  by  Patteson,  J.,  to  find 
a  verdict  for  the  defendant,  with  liberty  to  the  plaintiff  to 
move  to  enter  a  verdict  for  the  amount  of  the  sale,  in  case 
the  Court  should  be  of  opinion,  that  it  was  not  competent 
for  the  defendant,  in  the  peculiar  situation  in  which  he  stood 
to  the  plaintiff,  to  set  up  the  right  of  the  assignees.  It  was 
accordingly  moved  to  enter  a  verdict  for  the  plaintiff,  on  the 
ground,  that  an  agent  must  account  to  his  principal,  and 
cannot  set  up  the  jus  tertii  in  an  action  by  his  principal 
against  him.  It  was  held,  that  the  Judge  was  right,  and 
that  the  verdict  ought  to  stand.  There  were  many  authori- 
ties, said  Alderson,  J.,  which  were  cited  for  the  plaintiff, 
which,  without  doubt,  established  that  an  agent  must  ac- 
count to  his  principal,  and  cannot  set  up  the  jus  tertii  in  an 
action  by  his  principal  against  him.  But  the  Court  think, 
said  he,  that  all  those  cases  were  distinguishable  from  the 
present,  upon  the  ground  that  the  jury  had  found  that  the 
plaintiff's  possession  of  the  goods  arose  out  of  a  fraud  con- 
certed between  him  and  the  insolvent ;  and  on  this  ground 
the  verdict  might  well  stand  consistently  with  those  cases. 
"  We  are  very  glad,"  the  learned  Judge  observed,  "  that 
this  case  can  be  thus  decided  consistently  with  the  general 
rules  of  law,  as  it  is  obviously  in  conformity  to  the  substan- 
tial justice  of  the  particular  case." 

§  337.  Again,  in  King  v.  Richards,  in  Pennsylvania,1  the 
question  was,  whether  the  defendants,  the  bailees  of  goods 
delivered  to  them  as  common  carriers,  ought  to  be  permitted 
to  show,  in  an  action  brought  by  the  bailors  or  their  as- 
signees, that  the  bailors  had  no  right  to  the  goods  whatever. 
The  defendants  were  common  carriers  between  New  York 
and  Philadelphia,  and  had  signed  a  receipt  for  certain  goods 
as  received  of  A.,  which  they  promised  to  deliver  to  his  order. 

1  King  t>.  Richards,  6  Whart.  (Perm.)  R.  418. 


CH.  VIH.j  NON-DELIVERY.  341 

In  trover  by  the  indorsees  of  this  paper,  who  had  made  ad- 
vances on  the  goods,  it  was  held,  that  the  defendants  might 
prove  that  A.  had  no  title  to  the  goods  ;  that  they  had  been 
fraudulently  obtained  from  the  true  owner ;  and  that,  upon 
demand,  they  had  delivered  them  up  to  the  latter.  Kennedy, 
J.,  who  delivered  the  opinion  of  the  Court,  considered  that  it 
might  be  correct  to  hold,  where  the  real  owner  of  the  prop- 
erty does  not  appear  and  assert  his  right  to  it,  that  the  carrier 
shall  not  be  permitted,  of  his  own  mere  motion,  to  set  up,  as 
a  defence  against  his  bailor,  such  right  for  him. 

§  337  a.  There  can  be  no  doubt,  that  if  a  bailee  receive 
goods,  and  the  bailor  has  no  title  to  them,  and  they  are  taken 
from  the  custody  of  the  bailee  by  the  authority  of  the  law,  it 
will  be  a  defence  of  an  action  brought  against  him  by  the 
bailor  for  a  non-delivery.  And,  although  in  general  an  agent 
cannot  dispute  the  title  of  his  principal,  yet  this  doctrine  will 
not  protect  goods  received  by  a  bailee  from  an  execution 
against  the  person  depositing  them ;  and  if  goods  are  taken 
from  a  wharfinger  or  warehouseman  by  lawful  process,  he 
can  protect  himself  in  a  suit  brought  against  him  by  the 
owner.1 

§  338.  If  the  carrier  pays  damage  for  the  loss  of  goods,  it 
is  of  course  tantamount  to  a  safe  delivery,  and  he  is  conse- 
quently entitled  to  his  freight.2  But  an  acceptance  of  the 
goods  by  the  owner,  after  they  have  received  damage  in  con- 
sequence of  the  carrier's  negligence,  is  no  bar  to  an  action 
for  such  damage;  for,  as  it  has  been  already  laid  down, 
nothing  short  of  a  release  or  satisfaction  constitutes  such  a 
bar.3 

1  Burton  v.  Wilkinson,  18  Vermt.  R.  186. 

a  Hammond  v.  M'Clure,  1  Bay,  (S.  C.)  R.  101 ;  and  see  D'Anjou  ». 
Ball,  3  H.  &  Johns.  (Md.)  R.  206. 

3  Ante,  §  333,  and  Bowman  v.  Teall,  there  cited  from  23  Wend.  (N.  Y.) 
R.  306  ;  and  see  also  Willoughby  v.  Backhouse,  2  Barn.  &  Cressw.  R. 
821 ;  Baylis  v.  Usher,  4  M.  &  Payne,  R.  790. 
29* 


342  LAW   OF   CARRIERS.  [CH.  VIII. 

§  339.  The  exercise  of  the  right  of  stoppage  in  transilu, 
or  the  right  of  stopping  the  goods  in  the  custody  of  the  car- 
rier during  their  transit,  affords  a  justification  for  non-delivery 
to  the  consignee.  Whenever  the  right  in  question  exists,  and 
notice  has  been  given  to  the  carrier,  after  he  has  received  the 
goods  for  carriage,  and  during  their  transit,  not  to  deliver 
them  over,  the  carrier  is  not  only  excused  for  non-delivery 
to  the  consignee,  but  he  is  also  subject  to  an  action,  if,  after 
such  notice  and  tender  of  the  freight,  he  should  refuse  to 
re-deliver  the  goods.  The  effect  of  the  notice  and  tender  is 
to  dispossess  the  consignee,  and  is  so  complete  a  re-vesting 
of  the  property  in  the  consignor,  that  if  the  goods,  notwith- 
standing the  notice,  are  placed  in  the  hands  of  the  consignee, 
and  are  subsequently  transferred  to  his  assignees,  in  case  of 
his  bankruptcy,  they  will  be  subject  to  an  action  of  trover  for 
them  at  the  suit  of  the  consignor.1 

§  340.  We  proceed  further  to  notice  the  right  of  stoppage 
in  transitu,  so  far  as  the  mode  of  exercising  it,  and  the  ter- 
mination of  it,  are  nearly  allied  to  the  duties  and  obligations 
of  carriers.  The  principal  question  to  be  determined  when 
the  inquiry  is  as  to  the  extent  of  the  vendor's  power  to  stop 
in  transitu,  as  the  technical  phrase  denotes,  is  the  duration 
of  the  transit  of  the  goods  sold.  The  authorities  which  have 
been  reviewed  on  the  subject  of  delivery  establish  the  propo- 
sition, that  in  all  cases  of  the  sale  and  transmission  of  goods, 
the  transitus  is  at  an  end  when  the  property  comes  either 
into  the  actual  possession  of  the  vendee,  or  arrives  at  that 
place,  where,  by  his  authority,  it  is  destined  for  his  use,  or 
to  await  his  orders.  The  consignee  must  have  taken  such 
actual  or  constructive  possession  of  the  goods  as  owner,  in 
order  to  constitute  a  determination  of  the  transit.2  It  is  not 

1  Little  v.  Cowley,  7  Taunt.  R.  169  ;  Stokes  v.  De  La  Riviere,  cited 
in  Bothlingk  v.  Inglis,  3  East,  R.  397 ;  Syeds  v.  Hay,  4  T.  R.  260. 

2  See  James  v.  Griffin,  2  M.  &  Welsh.  R.  623;  Dixon  v.  Baldwin, 
5  East,  R.  184  ;  Edwards  v.  Brewer,  2  M.  &  Welsh.  R.  375  ;  Townley  v. 
Crump,  4  Ad.  &  El.  R.  58. 


CH.  Vin.]  NON-DELIVERY.  343 

necessary,  in  order  tox  divest  the  consignor's  right  to  stop 
goods  in  transitu,  that  they  should  have  been  taken  by  the 
very  hands  of  the  consignee  himself;  they  may  be  marked, 
for  instance,  by  the  provisional  assignee,  if  a  bankrupt,  before 
arrival  at  the  place  where  the  consignee  is  in  the  habit  of 
receiving  them  ; 1  and  in  some  cases  common  carriers,  pack- 
ers, and  wharfingers,  may  stand  in  the  character  of  agents 
for  the  purpose  of  receiving  goods  or  holding  goods ;  a 
delivery  to  whom  would  be  equivalent  to  a  delivery  to  the 
consignee  himself.2  The  question  always  is,  whether  the 
party  to  whom  the  goods  actually  came  be  an  agent,  so  far 
representing  his  principal  as  to  make  the  delivery  to  him,  a 
full,  effective,  and  final  delivery  to  the  principal,  as  contra- 
distinguished from  a  delivery  to  a  person  virtually  acting  as 
carrier  or  means  of  conveyance  to  the  principal,  in  a  mere 
course  of  transit  towards  him.3 


1  Ellis  v.  Hunt,  3  T.  R.  464. 

2  Cross  on  Lien  and  Stopp.  in  Transitu,  371. 

3  Bolin  t;.  Huffnagle,  1  Rawle,  (Penn.)  R.9.     Goods  purchased  by  one 
at  a  distance  and  forwarded  (o  a  point,  and  there  taken  by  a  carrier  of 
the  purchaser,  to  be  transported  to  the  residence  of  the  purchaser,  may 
be  stopped  in  transitu  on  the  failure  of  the  purchaser,  and  before  they 
reach  his  residence.     Buckley  ».  Farniss,  15  Wend.  (N.  Y.)  R.  137. 
No  case  is  found  in  the  books  precisely  like,  in  its  prominent  circum- 
stances,  the  case  of  Sawyer  v.   Joslin,   in   Vermont,    (20   Vermt.   R. 
172.)     In  that  case  it  appeared,  that  goods  were  shipped  at  Troy  and 
directed  to  the  vendee  at  Vergennes,  and  were  landed  upon  the  wharf  at 
Vergennes,  which  was  half  a  mile  from  the  vendee's  place  of  business  ; 
and  it  was  proved,  that  the  wharf  was  the  usual  place  of  the  vendee's 
receiving  the  goods  in  that  town,  and  that,  after  they  were  landed  upon 
the  wharf,  neither  the  wharfinger  nor  any  person  for  him,  or  for  the  car- 
riers, had  any  charge  of  the  goods,  but  that  it  was  usual  for  the  vendee, 
and  others  who  received  goods  at  that  wharf,  to  receive  the  goods  upon 
the  wharf  and  transport  them  to  their  places  of  business  ;  and  it  appeared 
that  the  goods  were  not  subject  to  any  lien  for  freight  or  charges.     It  was 
held,  that  the  wharf  was  the  place  of  ultimate  destination  of  the  goods 
intended  by  the  consignor  ;  and  that  the  goods,  when  landed  there,  came 
into  the  constructive  possession  of  the  vendee,  and  were  beyond  the  bounds 
of  the  vendor's  right  of  stoppage  in  transitu. 


344  LAW  OF  CARRIERS.  [CH.  VIII. 

§  341.  If  a  man  be  in  the  habit  of  using  the  warehouse  of 
another,  whether  that  of  a  carrier  or  wharfinger,  as  his  own, 
making  it  a  depository  of  his  own  goods,  and  disposing  of 
them  there,  the  transit  terminates  with  the  arrival  of  the 
goods  at  such  depository.1  But  this  must  be  understood  as 
extending  only  to  the  instances  where  a  delivery  into  the 
warehouse  has  been  perfected,  or  the  consignee  has  obtained 
entire  control  over  the  goods,  prior  to  his  insolvency.  Thus, 
the  mere  arrival  of  a  ship  at  a  wharf,  without  any  delivery 
of  the  goods  out  of  the  hold  of  the  ship,  is  not  sufficient  to 
constitute  a  termination  of  the  transit,  even  though  the 
wharf  be  customarily  used  by  the  consignee  as  the  place  of 
deposit  for  the  goods  shipped  by  his  direction.2  Under  such 
circumstances  it  has  been  expressly  held,  that  there  is  not 
such  a  delivery  to,  or  appropriation  made  by  the  consignee, 
as  to  deprive  the  consignor  of  the  right  of  stoppage  in 
transitu.3 

§  342.  A  mere  commencement  of  delivery,  not  so  far  com- 
pleted as  to  enable  the  consignee  to  take  actual  possession, 
cannot  be  construed  into  a  determination  of  the  transit. 
Where  a  quantity  of  iron  was  delivered  to  a  carrier  to  be 
conveyed  to  a  vendee,  and  the  carrier  having  reached  the 
vendee's  premises,  landed  a  part  of  the  iron  at  his  wharf, 
but  finding  that  he  had  stopped  payment,  reloaded  the  same 
on  board  bis  barge,  and  took  the  whole  of  the  iron  to  his 
own  premises  ;  it  was  held,  that  there  was  no  delivery  of  any 
part  of  the  iron  so  as  to  divest  the  consignor  of  his  right  to 
stop  in  transitu  ;  the  special  property  remaining  in  the  carrier 
until  the  freight  was  paid  or  tendered  for  the  whole  cargo, 
or  until  he  had  done  some  act  showing  that  he  assented  to 


1  Howe  v.  Pickford,  8  Taunt.  R.  83 ;  and  see  Hurry  v.  Mangles,  1 
Campb.  R.  452. 
a  See  ante,  §  300. 
Tucker  ».  Humphrey,  4  Bing.  R.  516. 


CH.  VIII.]  '   NON-DELIVERY.  345 

part  with  the  possession  of  the  goods  without  payment  of  the 
freight.1 

§  343.  If  an  agent  be  merely  clothed  with  a  specific  and 
limited  authority  to  forward  the  goods  to  a  particular  desti- 
nation, the  transit  is  not  determined  until  the  goods  have 
reached  the  place  named  by  the  buyer  to  the  seller  as  such 
destination  ;  for,  in  such  case,  the  warehouse  of  the  agent  is 
the  mere  resting  place  for  the  goods.2  And  if  goods,  in  the 
course  of  their  journey,  reach  the  hands  of  an  agent  thus 
confined  to  a  particular  order  of  destination,  the  case  will 
not  be  varied  by  the  circumstance  that  he  has  paid  the  dues 
on  the  carriage.  As  where  an  agent  at  Southampton,  acting 
under  a  general  authority  from  a  draper  at  Guernsey,  to 
forward  to  him  there  all  goods  which  arrived  to  his  direc- 
tion at  Southampton,  received,  in  consequence,  a  quantity 
of  goods,  upon  which  he  paid  the  carriage  and  the  wharfage 
dues,  and  selected  the  ship  by  which  he  forwarded  the 
goods  ;  it  was  held,  that  the  transit  was  not  ended  at  South- 
ampton, but  that  the  vendor  might  stop  them  after  they  had 
been  put  on  board  the  vessel  for  Guernsey.3 

§  344.  The  delivery  to  an  agent  not  invested  with  any 
direction  as  to  the  further  transit  of  the  goods,  may  be  ren- 
dered incomplete,  by  conditions  annexed  by  the  vendor  at 
the  time  of  the  delivery.4  For,  although,  upon  an  absolute 
delivery  of  goods  to  a  packer  of  a  purchaser,  who  has  no 
warehouse  of  his  own,  the  transit  is  in  general  at  an  end  ; 
yet  if  the  goods  be  delivered  to  him  upon  the  understanding 
that  they  are  to  be  paid  for  in  ready  money,  he  becomes  a 
trustee  for  the  vendor,  and  it  would  contravene  his  duty  to 
deliver  them  to  the  purchaser  until  paid  for  accordingly.5 

1  Ctawshay  ».  Eades,  1  B.  &  Cress.  R.  181. 

8  Coates  v.  Railton,  6  B.  &  Cress.  R.  422  ;  and  see  ante,  §  75. 

3  Nicholls  v.  Le  Feuvre,  2  Bing.  New  R.  81. 

4  Owenson  v.  Morse,  7  T.  R.  64. 

5  Loeschman  v.  Williams,  4  Campb.  R.  181 ;  Goodhall  v.  Skelton, 
2H.  Bl.R.  316. 


346  LAW   OF   CARRIERS.*  [CH.  VIII. 

§  345.  But  in  the  instances  in  which  it  has  been  said,  that 
the  goods  must  come  to  the  corporeal  touch  of  the  vendee,  in 
order  to  oust  the  right  of  stopping  in  transilu,1  it  is  a  figura- 
tive expression,  rarely  if  ever  true.2  If  it  be  predicated  of 
the  vendee's  actual  touch  or  of  the  touch  of  any  other 
person,  it  comes  in  each  instance  to  a  question,  whether  the 
party  to  whose  touch  they  actually  come,  be  an  agent  so  far 
representing  the  principal  as  to  make  a  delivery  to  him  a 
full,  effectual,  and  final  delivery  to  the  principal,  as  contra- 
distinguished from  a  delivery  to  a  person  virtually  acting  as 
a  carrier  or  mean  of  conveyance  to,  or  on  account  of,  the 
principal,  in  a  mere  course  of  transit  towards  him.  If  the 
transit  be  once  at  an  end,  the  delivery  is  complete,  and  the 
transitus  for  this  purpose  cannot  commence  de  novo,  merely 
because  the  goods  are  again  sent  upon  their  travels  towards 
a  new  and  ulterior  destination.3  Hence,  where  by  arrange- 
ment an  intermediate  delivery  occurs  before  the  goods  reach 
their  ultimate  destination,  it  becomes  necessary  to  inquire 
whether  the  party  to  whom  they  are  so  delivered  is  invested 
with  the  power  to  receive  them,  and  to  alter  their  destina- 
tion ;  or  is  a  mere  agent  to  see  them  forwarded  in  accord- 
ance with  original  directions.  If  invested  with  a  general 
and  unlimited  authority  in  this  respect,  the  transitus  ends  on 
the  arrival  of  the  goods  into  his  hands,  for,  as  between  the 
buyer  and  the  seller,  this  is  the  ulterior  delivery  in  view.4 
It  is  not  merely  a  constructive  but  an  actual  delivery.5  The 
distinction  here  made  is  not  in  discordance  with  the  two  pre- 
ceding sections. 

§  346.  It  was  formerly  ruled,   that  a  completion  of  the 

1  See  Ellis  v.  Hunt,  3  T.  R.  464. 

2  See  Cross  on  Lien  and  Stopp.  in  Trans.  371,  372  ;  Whit,  on  Lien, 
206. 

3  Cross,  supra;  Dixon  v.  Baldwin,  5  East,  R.  184  ;  Jackson  v.  Nichol, 
5  Bing.  New  R.  508. 

4  Leeds  v.  Wright,  3  Bos.  &  Pull.  R.  320  ;  Scott  v.  Pettit,  Ib.  469. 

5  Cross,  supra. 


CII.  VIII.]  NON-DELIVERY.  347 

journey  was  necessary  to  defeat  the  right  of  a  vendor  to  stop 
in  transitiij  or  to  re-seize  goods  on  non-payment  of  the  price, 
and  the  insolvency  of  the  buyer.1  But  in  a  later  case  than 
the  one  referred  to,  Lord  Alvanley  expressed  himself  to  be 
directly  opposed  to  that  doctrine  which  was  laid  down  by 
Lord  Kenyon.  "  If,"  said  he,  "  in  the  course  of  the  con- 
veyance of  the  goods  from  the  vendor  to  the  vendee,  the 
latter  be  allowed  to  exercise  any  act  of  ownership  over  them, 
he  thereby  reduces  the  goods  into  possession,  and  puts  an 
end  to  the  vendor's  right  to  stop  them.  So,  though  it  has 
been  said,  that  the  right  of  stoppage  continues  until  the 
goods  have  arrived  at  their  journey's  end,  yet  if  the  vendee 
meet  them  upon  the  road,  and  take  them  into  his  own  pos- 
session, the  goods  will  then  have  arrived  at  their  journey's 
end  with  reference  to  the  right  of  stoppage."  2  In  conform- 
ity with  this  opinion  of  Lord  Alvanley  is  the  judgment  of 
Chambre,  J.,  who  had  little  doubt  that  if  the  consignee 
intercepts  the  goods  in  their  passage,  before  the  consignor 
has  exercised  his  right  of  stopping  in  transilu,  and  they  are 
actually  delivered  from  the  carrier  before  they  get  to  the  end 
of  the  journey,  such  a  delivery  to  the  consignee  will  be 
complete.3 

§  347.  It  is  not,  therefore,  a  necessary  consequence,  that 
because,  when  a  person  orders  goods  to  be  delivered  at  a 
particular  place,  the  transilus  continues  in  general  until  they 
have  been  delivered  accordingly,  the  consignee  may  not, 
under  any  circumstances,  anticipate  the  delivery.4  If,  for 
instance,  before  the  goods  reach  their  ultimate  destination, 
a  vendee  directs  a  postponement  of  their  delivery,  or  does 
any  other  act  equivalent  to  taking  possession  of  them,  the 

1  Hoist  v.  Pownal,  1  Esp.  R.  240. 
a  Mills  v.  Ball,  2  Bos.  &  Pull.  R.  461. 

3  Oppenheim  v.  Russel,  3  Bos.  &  Pull.  R.  42.     See  also  the  doctrine 
of  Lord  Kenyon  repudiated  in  Foster  v.  Frampton,  6  B.  &  Cress.  R. 
107. 

4  See  Cross  on  Lien  and  Stopp.  in  Trans.  381. 


348  LAW   OF   CARRIERS.  [CH.  VIII. 

transitus  may  be  previously  determined.  Thus,  taking 
samples  from  the  whole  stock,  and  directing  the  carrier  to 
keep  the  goods  in  his  warehouse  until  he  receives  further 
directions,  constitutes  the  carrier  the  consignee's  warehouse- 
man ;  and  his  possession  is  as  much  the  possession  of  the 
consignee  as  if  the  latter  had  taken  the  whole  bulk  into  his 
own  warehouse.1 


Foster  v.  Frampton,  lib.  sup. 


CH.  IX.]  RIGHT  OF  POSSESSION.  349 


CHAPTER  IX. 

OF    THE    RIGHTS    OF    CARRIERS  —  RIGHTS    OF    POSSESSION,    OF 
LIEN,   AND   OF  ACTION  FOR  FREIGHT. 

§  348.  BY  virtue  of  the  delivery  of  goods  to  a  carrier  for 
transportation,  there  is  vested  in  him  a  special  property, 
which,  in  the  first  place,  authorizes  him  to  maintain  an 
action  against  any  person  who  disturbs  his  possession  of,  or 
does  any  injury  to,  the  goods ;  and  the  reasons  are,  that  he 
has  an  interest  in  the  transportation,  and  is  responsible  for 
injuries  to  the  goods  by  loss  or  otherwise,  during  their 
transit.1  It  is  an  old  doctrine,  that  every  bailee  has  a  tem- 
porary qualified  property  in  the  things  of  which  possession 
is  delivered  to  him  by  the  bailor,  and  has,  therefore,  a  pos- 
sessory action,  or  an  appeal  in  his  own  name,  against  any 
stranger  who  may  damage  or  purloin  them.2  Mr.  J.  Story 
deduces  from  the  numerous  authorities  he  has  cited,  in  his 
work  on  Bailments,  as  the  true  doctrine,  "  that  every  bailee 
ought  have  a  general  right  of  action  against  mere  wrong- 
doers to  the  property,  while  in  his  possession,  whether  he 
has  a  special  property  therein  or  not,  because  he  is  answer- 


1  Bac.  Abr.  Contract,  C.  ;  Goodwin  v.  Richardson,  Roll.  Abr.  5;  1 
Ld.  Raym.  R.  278 ;  Wilbraham  v.  Snow,  1  Ventr.  R.  52 ;  2  Saund.  R. 
476,  and  2  Ib.  47,  n.  cited  in  Story  on  Bailm.  §  585.  "If  a  common  car- 
rier has  goods  delivered  to  him  to  carry  to  a  place,  and  a  stranger  takes 
them  out  of  his  possession,  and  converts  them  to  his  own  use,  an  action 
of  trover  and  conversion  lies  by  the  carrier  against  him ;  for  he  has  a 
special  property  in  the  goods,  and  is  to  give  satisfaction  to  the  owner  for 
them."  Per  Brampt.,  C.  J.,  in  Goodwin  v.  Richardson,  ub.  sup. 

8  Year  Book,  21  Hen.  VII.,  14*,  15  a,  cited  in  Jones  on  Bailm.  80; 
and  see  2  Bla.  Comm.  452,  and  Story  on  Bailm.  §  93,  et  seq.^  and  Ante,  §  4. 
30 


350  LAW   OF   CARRIERS.  [CH.  IX. 

able  over  to  the  bailor ;  for,  (as  it  has  well  been  said,1)  a 
man  ought  not  to  be  charged  with  an  injury  to  another, 
without  being  able  to  resort  to  the  original  cause  of  that 
injury,  and  in  amends  thereof  to  do  himself  right." 2  For 
the  reason  that  the  owner  or  the  master  of  a  vessel  is  liable 
for  goods  he  has  to  transport,  which  are  wrongfully  detained 
by  revenue  officers,  he  has  a  remedy  over  against  the  officers 
for  such  illegal  detention."  3 

§  349.  The  carrier's  property  in  the  goods  is  not  absolute, 
for  the  very  obvious  reason,  that  his  contract  is  for  restitu- 
tion.4 As  a  general  rule,  therefore,  he  has  no  right  to  sell 
or  dispose  of  the  goods  intrusted  to  him  for  transportation. 
Accordingly,  if  the  master  of  a  vessel  make  a  new  bill  of 
lading  of  the  goods  on  board,  in  his  own  name  as  owner, 
and  the  goods  are  sold  to  one  who  was  ignorant  of  the  fraud, 
the  real  owner  may  sue  the  purchaser  for  their  value  and 
recover.6 

§  350.  Where  certain  carriers  by  water  of  a  quantity  of 
salt,  in  Indiana,  purchased  a  boat  on  their  way  to  ascend 
the  river  towards  the  place  of  destination,  and  deposited 
with  the  seller  a  part  of  the  load  as  security  for  the  price  of 
the  boat,  informing  him  they  were  carriers ;  it  was  held, 
that  such  disposal  of  the  property  was  unauthorized,  and 
that  the  right  to  the  possession  of  it  continued  in  the  original 


1  Bac.  Abr.  Bailment,  D. 

2  Story  on  Bailm.  §  93/;  and  see  Waterman  v.  Robinson,  5  Mass.  R. 
303. 

3  Action  against  the  owner  of  a  vessel,  for  non-delivery  of  ten  pipes  of 
wine.     The  ship  was  detained  at  Jamaica,  for  a  supposed  violation  of  the 
revenue  laws,  but  on  appeal,  the  sentence  of  condemnation  was  reversed, 
and  it  was  said  by  Lord  Ellenborough,  "  You  have  an  action  against  the 
officers.     The  shipper  can  only  look  to  the  owner  or  master  of  the  ship." 
Gosling  v.  Higgins,  1  Campb.  R.  451. 

4  See  Story  on  Bailm.  §  93 ;  Swift  v.  Moseley,  Vermt.  R.  349. 

5  Sailers  v.  Everett,  20  Wend.  (N.  Y.)  R.  275. 


CH.  IX.]  RIGHT  OF  POSSESSION.  351 

owner,  and  that  a  bond  fide  purchaser  of  goods  out  of  market- 
overt,  could  not  hold  against  the  true  owner.1 

§  351.  In  the  above  case  the  purchaser  from  the  carriers 
was  told  that  they  were  carriers,  and  he  was  thereby  put  on 
his  guard.  But  it  was  contended  in  a  case  in  Pennsylvania, 
that  a  wagoner  had  such  a  special  property  in  the  goods 
which  were  sent  by  him  to  be  delivered  to  a  certain  person, 
as  authorized  him  (the  carrier)  to  dispose  of  them ;  and  the 
ground  taken  was,  that  the  party  who  places  confidence  in 
another,  should  be  the  loser  by  his  breach  of  faith,  and  not 
an  innocent  purchaser.  But  the  Court  held,  that  although 
the  carrier  is  vested  by  law  with  a  special  property,  by  virtue 
of  which  he  may  maintain  an  action  against  a  wrongdoer, 
yet  that  special  property  does  not  impair  the  general  prop- 
erty of  the  true  owner,  or  give  to  the  carrier  an  authority  to 
sell.  In  Pennsylvania  there  are  no  markets  overt,  by  a  sale, 
in  which  the  property  can  be  altered ;  so  that  a  sale  by  a 
carrier  of  goods  intrusted  to  him,  in  the  street  at  Pittsburg, 
gave  no  additional  validity  to  the  transaction.2 

§  352.  So,  a  carrier  by  sea,  although  he  has,  by  the  law 
merchant,  a  lien  on  goods  carried  by  him  for  the  payment  of 
freight,  yet  he  has  no  right,  of  his  own  mere  motion,  to  cause 
a  sale  for  the  payment  of  freight ; 3  and  a  carrier  by  sea  and 
a  carrier  by  land  stand  in  the  same  relation  to  the  owner  of 
the  goods.4 

§  353.  If  the  carrier  is  instructed  to  sell  the  goods  he 
undertakes  to  carry,  at  a  certain  price,  or  to  store  them, 
without  any  stipulation  as  to  payment  of  freight,  he  may 


1  Kitchell  v.  Vanador,  1  Blackf.  (Ind.)  R.  356. 

2  Lecky  ».  M'Dermott,  8  S.  &  Rawle,  (Perm.)  R.  500.     The  decision 
in  this  case  confirmed  in  Rapp  v.  Palmer,  3  Watts,  (Penn.)  R.  178. 

3  Hunt  v.  Haskell,  11  Shep.  (Me.)  R.  339. 

4  Saltus  v.  Everett,  20  Wend.  (N.  Y.)  R.  267. 


352  LAW   OF  CARRIERS.  [CH.  IX. 

demand  the  freight  from  the  warehouseman  on  delivery ; 
but,  it  will  be  a  conversion,  if,  without  such  demand,  he 
stores  the  cotton  as  his  own ;  and  if  he  refuses  to  deliver  the 
goods  for  any  other  cause  than  the  non-payment  of  freight, 
he  cannot  avail  himself  of  the  want  of  a  tender  of  the 
freight.1 

§  354.  It  is  clearly,  however,  an  exception  to  the  general 
rule,  that  the  master  of  a  ship  in  foreign  parts  may  hypoth- 
ecate or  even  sell  the  cargo,  as  well  as  the  ship,  when  abso- 
lutely necessary  to  enable  him  to  continue  his  voyage.  In 
such  case  of  necessity,  it  has  always  been  held,  says  Lord 
Tenterden,  that  the  master,  if  he  cannot  otherwise  obtain  the 
money,  may  sell  a  part  of  his  cargo  to  enable  him  to  convey 
the  residue  to  the  destined  port ; 2  and  the  same  doctrine  has 
been  fully  recognized  by  the  Courts  of  this  country.3  In 
case  of  wreck  or  stranding,  if  the  master  have  no  means  of 
transshipment,  he  has  a  right  to  sell,  but  the  great  necessity 
of  it  must  clearly  exist.4  The  acknowledged  rule  is,  that 
the  mere  shipment  of  merchandise  does  not  confer  on  the 
master  of  the  vessel  authority  to  dispose  of  the  goods,  and  in 
case  of  necessity,  the  burden  of  proof  showing  the  necessity 
lies  upon  the  purchaser.6 

§  355.  The  usage  of  trade  may  also  operate  to  take  the 


1  Blair  v.  Jeffries,  Dud.  (S.  C.)  R.  59. 

2  Abbott  on  Shipp.  164 ;  where,  in  consequence  of  damage  to  a  ship 
daring  the  voyage  it  becomes  impossible  to  prosecute  the  adventure,  the 
master  has  authority  to  sell  her  for  the  benefit  of  all  parties  interested : 
and  a  person  employed  by  him  to  superintend  the  sale  may  lawfully  pay 
over  the  proceeds  to  him,  or  to  his  order.     Ireland  v.  Thompson,  4  Man. 
Grang.  &  Scott,  R.  149. 

3  Ibid,  note,  p.  165,  referring  to  American  cases. 

4  See  ante,  note  4  to  $  187,  p.  188 ;  United  States  Ins.   Co.  v.  Scott, 
1  Johns.  (N.  Y.)  R.  106. 

5  Saltus  v.  Everett,  20  Wend.  (N.  Y.)  R.  267 ;  Myers  v.  Baymore, 
lOBarr,  (Penn.)  R.  114. 


CH.  IX.]  RIGHT   OF  LIEN.  353 

case  from  the  application  of  the  general  principle,  that  a  sale 
by  a  carrier  vests  no  title  ;  as  if  it  be  the  usage  for  the  carrier 
to  act  as  an  agent  for  the  sale  of  the  goods  intrusted  to  him 
for  carriage.1  But  the  usage,  to  have  this  effect,  must  have 
every  requisite  to  give  it  validity ;  that  is,  it  must  be  long 
established,  certain,  uniform,  and  reasonable.2 

§  356.  But  the  right  of  common  carriers,  which  to  them  is 
of  the  most  importance,  consists  of  one  of  the  methods  pre- 
scribed by  the  law  for  the  recovery  of  their  hire.  They  are 
bound,  as  has  already  appeared,  to  carry  goods  for  a  reason- 
able reward,  unless  their  vehicle  be  already  full,  or  the  risk 
sought  to  be  imposed  upon  them  be  extraordinary,  or  the 
goods  be  of  such  a  nature  as  they  cannot  convey,  or  are  not 
in  the  habit  of  conveying  ;  and  in  case  of  refusal  are  liable 
to  an  action.  Still  if  goods  are  brought  to  them  for  the  pur- 
pose of  conveyance,  no  action  will  lie  against  them  for  refu- 
sal to  accept  them,  unless  there  was  at  the  time  an  offer  of 
the  carriage  price.3  If  they  undertake  to  carry  them  without 
having  been  previously  paid,  the  law  presumes  that  they  con- 
sider the  possession  of  the  goods  as  a  sufficient  security  for 
their  expected  remuneration ;  and,  in  conformity  with  this 
presumption,  it  authorizes  them  to  retain  this  possession  at 
the  end  of  the  transit,  until  they  have  received  satisfaction 
for  their  labor,  &c. ;  and  this  is  the  foundation  of  a  lien.*  If 

1  Ante,  §  104  -  107. 

2  Rapp  v.  Palmer,  3  Watts,  (Penn.)  R.  178 ;   and  see  ante,  $   106. 
"If  a  man,"  says  Bayley,  J.,  in  Pickering  v.  Buck,  15  East,  R.  44,  "  puts 
goods  into  another's  custody,  whose  common  business  it  is  to  sell,  he  con- 
fers an  implied  authority  to  sell;  "  and  the  cause  was  decided  on  that 
ground. 

3  See  ante,  §  124  ;   Cross  on   Lien,    &c.  282 ;  Jackson  v.   Rogers, 
2  Show.  R.  327;  Lane  v.  Cotton,   1  Ld.  Rayra.   R.  646;  Edwards  v. 
Sherratt,  1  East,  R.  60  ;  Riley  v.  Home,  5  Bing.  R.  217 ;  Batson  v. 
Donovan,  4  B.  &  Aid.  R.  11  ;  Cole  v.  Goodwin,  19  Wend.  (N.  Y.)  R. 
234. 

4  See  Jones  on  Carr.  99  ;  Story  on  Bailm.  §  588.     It  has  appeared  that 
there  has  been  a  degree  of  discrepancy  in  opinion  as  to  whether  private 

30* 


354  LAW   OF    CARRIERS.  [CH.  IX. 

this  security  is  waived,  by  a  delivery  of  the  goods  before  the 
payment  of  the  hire,  recourse  must  then  be  had  to  an  action 
for  its  recovery  ;  or  for  the  recovery  of  what  is  denominated 
freight.  It  is  proposed,  therefore,  to  consider,  1st,  the  right 
of  the  carrier  before  the  goods  are  delivered  over  ;  and, 
2dly,  his  right  after  the  possession  has  been  parted  with. 

§  357.  First.  —  LIENS  are  either  by  the  Common  Law, 
usage,  or  agreement,  and  are  of  two  denominations  —  the 
one  a  particular  or  specific  lien,  given  by  the  policy  of  the 
Common  Law,  and  the  custom  of  the  realm,  and  attaching 
only  upon  the  specific  chattels,  for  the  unpaid  price,  or  car- 
riage thereof,  or  for  work  and  labor  bestowed  thereupon  ;  the 
other,  a  general  lien,  authorizing  detention  of  the  goods,  not 
only  for  demands  arising  out  of  the  article  retained,  but  for 
a  general  balance  of  accounts,  relating  to  dealings  of  a  like 
nature.  The  latter  is  an  encroachment  upon  the  Common 
Law,  and  has  consequently  been  regarded  by  Courts  with 
much  jealousy.  Hence  is  it  that,  in  the  absence  of  some 
general  usage  affecting  the  custom  of  the  realm,  or  an  express 
agreement  between  the  contracting  parties,  or  evidence  to 
show  that  such  was  their  common  mode  of  previous  dealing, 
a  further  extension  of  the  general  privilege  has  met  with  much 
discouragement,  and  a  jury  is  warranted  in  negativing  any 
right  beyond  the  specific  lien  to  which  parties  are  entitled  at 
Common  Law.1  As  it  has  been  held,  in  New  Jersey,  a 

carriers,  or  carriers  for  hire,  who  are  not  common  carriers,  have  a  lien  on 
the  goods  carried  for  the  carriage.  Ante,  §  66.  But  it  has  long  heen 
held,  that  common  carriers  have  a  lien.  Skinner  v.  Upshaw,  2  Ld.  Raym. 
R.  752 ;  and  for  American  cases  recognizing  the  doctrine,  see  Goodman 
v.  Stewart,  Wright,  (Ohio)  R.  216;  Heywood  v.  Middleton,  1  Const. 
(S.  C.)  186;  Slater  v.  Gaillard,  Ib.  428.  Although  a  consignee,  on  a 
bill  of  lading,  acquires  a  property  in  the  consignment,  and  may  sell  while 
the  goods  are  in  transit,  and  the  goods  have  not  been  paid  for,  the  carrier 
has  a  right  to  retain  possession  of  the  goods  against  the  consignee  until  the 
carriage  is  paid  for.  Jordan  v.  James,  5  Ohio  R.  88.  And  see  Bowman 
v.  Hilton,  11  Ib.  303. 
i  Cross  on  Lien,  &c.  15  ;  Rushforth  v.  Hadfield,  6  East,  R.  522. 


CH.  IX.]  RIGHT  OF  LIEN. 


common  carrier  has  a  lien  on  goods  in  his  possession,  but 
prima  fade  only  for  the  transportation  of  those  particular 
goods,  and  not  for  the  transportation  of  other  goods  also, 
which  do  not  remain  in  his  possession.1 

§  358.  To  establish  a  general  lien  on  the  ground  of  usage, 
strong  and  satisfactory  evidence  must  be  adduced  of  ancient, 
numerous,  and  important  instances  in  which  the  right  has 
been  exercised.2  Therefore,  where  the  jury  found,  that  the 
plaintiffs  had  no  knowledge  of  such  usage,  though  there  was 
proof,  unopposed  by  other  evidence,  of  its  having  been  exer- 
cised by  the  defendants  and  various  other  common  carriers 
throughout  the  neighborhood,  for  ten  or  twelve  years  before, 
and  in  one  instance  so  far  back  as  thirty  years,  the  Court 
refused  to  grant  a  new  trial.3  When,  on  the  other  hand,  the 
usage  is  general,  and  prevails  to  such  an  extent  that  all  parties 
contracting  may  be  supposed  conusant  of  it,  the  usage  then 
becomes  evidence  of  a  contract,  or  raises  a  presumption  that 
the  parties  contracted  with  reference  to  it.4 

§  359.  As  common  carriers  are  bound  to  carry  goods  for  a 
reasonable  reward,  it  might  reasonably  be  supposed,  that,  in 
their  case,  a  more  favorable  and  extended  construction  than 
that  above  mentioned  would  have  been  put  upon  the  doc- 
trine of  lien.  On  the  contrary,  the  lien  of  a  common  carrier 
for  his  general  balance  is  never  favored,  unless  arising  in 
point  of  law  from  an  implied  agreement  to  be  inferred  from 
the  general  usage  of  trade,  proved  by  numerous  clear  and 
satisfactory  instances  ;  and  a  few  recent  instances  are  insuffi- 
cient to  establish  the  requisite  proof  of  it.6 

1  Hartshorne  v.  Johnson,  2  Halst.  (N.  J.)  R.  108. 

2  A  doctrine  which  applies  to  commercial  usage  generally,  anlet  $  229, 
301. 

3  Rushforth  v.  Hadfield,  ub.  sup. 

4  Holderness  v.  Collinson,  7  Barn.  &  Cress.  R.  212;  Rex  v.  Hum- 
phrey, I  M'Clel.  &  You.  R.  191. 

5  Rushforth  v.  Hadfield,  ub.  sup. 


356  LAW   OF  CARRIERS.  [CH.  IX. 

§  360.  By  express  stipulation  with  their  customers,  car- 
riers may  undoubtedly  secure  to  themselves  a  general  lien  ; 
and  a  promulgation  by  a  carrier  of  a  notice  to  that  effect,  it 
is  said,  might  subject  the  goods  of  a  customer  cognizant  of 
the  notice,  to  be  detained  for  a  general  balance  due  from 
him.1  But  in  Kirkman  v.  Shawcross,2  Lord  Kenyon  de- 
clared, that  common  carriers  have  no  right  to  say,  that  they 
will  not  receive  any  goods  but  on  their  own  terms,  He  said 
further,  however,  be  that  as  it  may,  when  a  common  carrier 
has  given  notice  that  he  would  not  be  answerable  for  goods 
of  a  particular  denomination,  unless  he  received  a  certain 
premium,  and  that  notice  has  come  to  the  knowledge  of  the 
party  suing,  the  Courts  have  considered  it  as  an  agreement 
binding  on  both  parties.  And  it  is  strongly  implied  in  Rush- 
forth  v.  Hadfield,3  that  a  common  carrier  may,  on  the  same 
principle,  create  a  general  lien  as  against  the  person  who 
employed  him,  by  means  of  notice.4 

§  361.  Where  a  carrier  had  given  notice,  that  all  goods 
would  be  subject  to  a  lien,  not  only  for  the  freight  of  the 
particular  goods,  but  also  for  any  general  balance  due  from 
their  respective  owners,  it  was  held  that  this  notice  did  not 
authorize  him  to  retain  the  goods  of  the  principal  for  a  gen- 
ral  balance  due  to  him  from  the  factor,  though  they  were 
addressed  to  the  latter.5  Even  if  the  notice,  in  this  case, 

1  Cross  on  Lien,  &c.  283.     See  Abbott  on  Shipp.  286.     An  agreement 
entered  into  by  a  number  of  dyers,  pressers,  &c.  at  a  public  meeting,  that 
they  would  not  receive  any  more  goods  to  be  dyed,  but  on  condition  that 
they  should  have  respectively  a  lien  on  those  goods  for  their  general  bal- 
ance, is  good  in  law;  and  any  one,  who,  after  notice  of  it,  delivers  goods 
to  either  of  those  persons,  must  be  considered  as  having  assented  to  those 
terms,  and  cannot  demand  his  goods  until  he  has  paid  the  balance  of  his 
general  account.     Kirkman  v.  Shawcross,  6  T.  R.  14. 

2  Kirkman  v.  Shawcross,  ub.  sup. 

3  Rushforth  ».  Hadfield,  6  East,  R.  224. 

4  Kent  considers  that  it  is  a  point  still  to  be  settled  by  judicial  decision. 
2  Kent,  Comm.  637.     See  note  by  Metcalf  to  p.  67  Yelv.  R. 

5  Wright  v.  Snell,  5  B.  &  Aid.  R.  350. 


CH.  IX.]  BIGHT   OF  LIEN.  357 

had  been  that  all  goods,  to  whomsoever  belonging,  should 
be  subject  to  a  lien  for  every  general  balance  due  from  the 
person  to  whom  they  were  addressed,  it  seems  doubtful1 
whether  it  would  have  been  of  any  avail ;  for  Holroyd,  J., 
there  said,  that  a  factor  cannot  by  any  agreement,  either 
express  or  implied  from  the  course  of  dealing,  subject  the 
property  of  his  consignor  and  employer  to  the  payment  of 
his  own  debts  ;  and  Best,  J.,  doubted  whether  a  carrier  could 
make  so  unjust  a  regulation.2 

1  Jones  on  Carr.  101. 

2  Doubts  have  been  entertained  how  far  this  decision  may  have  been 
affected,  had  the  notice  been  more  comprehensive  in  its  terms,  and  included 
the  goods,  not  only  of  the  respective  owners,  but  of  every  person,  to 
whomsoever  addressed  ;  and  whether,  in  such  case,  the  carrier  might  not 
have  been   entitled  to  a  general  right  of  detention  against  all  parties. 
Cross  on  Lien,  &c.  pp.  283,  284.     With  the  view  to  enable  such  enlarge- 
ment of  power,  Mr.  Chitty,  in  his  Practice  of  the  Law,  (vol.  1,  p.  493,) 
has  suggested  the  expediency  of  introducing  words  to  the  effect,  "  that  the 
goods  of  all  persons  dealing  with  the  party  in  his  trade,  and  whether 
belonging  to  the  customer,  or  to  any  other  person  or  persons,  or  in  which 
he  is  in  any  respect  interested,  whether  for  a  lien  or  otherwise,  or  which 
may  be  in  the  possession  of  the  advertiser,  or  whether  going  to  or  from 
his  manufactory  or  premises,  must  be  understood  to  be,  and  will  be,  sub- 
ject to  a  general  lien  for  all  moneys  due  to  the  advertiser,  as  well  from 
the  customer,  as  from  any  person  or  persons  entitled  to  or  interested  in 
such  goods."     But  it  is  considered  (Cross  on  Lien,  &c.  p.  284,)  doubtful 
if  such  notice  would  be  effectual.     "  To  grant  the  validity  of  so  extensive 
a  claim,  would  be  to  allow,  by  special  agreement,  a  power  against  third 
parties  not  recognized  by  the  Courts,  even  though  sanctioned  by  immemo- 
rial custom,  (Leuckhart  v.  Cooper,  3  Bing.  N.  C.  99 ;)  for  to  give  valid- 
ity and  effect  to  usage,  it  has  been  decided  that  it  must  be  reasonable  as 
well  as  ancient,  and  it  can  scarcely  be  contended,  that  the  detention  of  the 
goods  of  the  consignor,  for  the  debt  of  the  consignee,  is  either  just  or 
reasonable  (Ib.)      The  principle  of  such  decision  should  therefore,  and 
probably  would,  regulate  the  judgment,  were  the  question  suggested  to 
come  before  the  Court.     The  precautionary  measure  proposed  in  the  form 
of  notice,  may,  at  least,  be  pursued,  majori  cauteld ;  but,  to  permit  the 
annexation  of  terms  so  inconsistent  with  the  general  principle,  that  car- 
riers are  compellable  to  carry  the  goods  of  all  customers,  for  reasonable 
reward,  would  at  once  be  an  abrogation  of  the  rule,  and  a  permissive 
power  vested  in  carriers,  which  immemorial  custom  has  not  been  able  to 


358 


LAW   OF   CARRIERS. 


[CH.  IX. 


§  362.  It  has  been  decided,  that  if  there  be  an  agreement 
for  a  general  lien  between  the  carrier  and  the  consignee,  this 
will  not  affect  the  right  of  stoppage  in  transilu  inherent  in 
the  consignor ;  and  therefore  the  consignor,  upon  giving 
notice  of  his  intention  to  exercise  this  privilege,  will  be  enti- 
tled to  a  re-delivery,  upon  the  payment  of  the  carriage  price 
of  the  particular  consignment.1  As  has  already  been  illus- 
trated, the  delivery  to  the  carrier  is  a  qualified,  not  an  abso- 
lute delivery  to  the  consignee,  and  is  good  to  all  intents  and 
purposes,  except  that  of  defeating  the  right  of  the  consignor 
to  stop  in  transitu.  It  is  such  as  to  give  the  latter  a  right 
of  resuming  possession  at  any  time  before  the  goods  come 
into  that  situation  which  gives  the  consignee  a  complete 
dominion  over  them.2 

§  363.  It  is  laid  down  by  a  late  writer,3  and  other  element- 
ary writers  who  have  preceded  him,  that  the  obligation  of 
carriers  to  receive  and  carry  goods  for  hire,  exempts  them, 
as  in  the  case  of  innkeepers,  from  any  necessity  to  inquire 
into  the  title  of  the  parties  delivering  them;  and  that  for 
this  reason,  they  may  retain  them  against  the  true  owner 
until  the  particular  carriage  be  paid,  though  the  true  owner 


establish  in  others."  "I  should  doubt,"  observed  Best,  J.,  (Wright  v. 
Snell,  ub.  sup.)  "if  any  form  of  words  would  be  able  to  establish  a  liabil- 
ity of  such  kind.  It  is  however  sufficient,  (says  he)  in  the  case  before 
the  Court,  to  say,  that  the  plaintiff  is  the  owner  of  the  goods,  and  there 
being  nothing  due  from  him  to  the  carriers,  the  words  of  the  notice  do  not 
impose  any  liability  upon  him.  If  any  question  should  arise,  falling  within 
the  terms  of  the  notice  last  given,  it  would  be  very  Jit  to  consider  whether 
a  carrier  can  make  so  unjust  a  regulation  as  is  there  attempted."  The 
notice  alluded  to  was,  that  all  goods,  from  whomsoever  received,  or  to 
whomsoever  belonging,  should  be  subject  to  a  lien,  not  only  for  the  freight 
of  the  particular  goods,  but  also  for  any  general  balance  that  might  be 
due  from  the  person  to  whom  they  were  consigned  or  addressed. 

1  Oppenheim  v.  Russell,  3  Bos.  &  Pull.  R.  42. 

2  See  ante,  §  339,  et  seq. 

3  Cross  on  Lien,  &c.  286. 


CH.  IX.]  RIGHT   OF  LIEN.  359 

prove  that  they  were  stolen  from  him  by  the  person  who 
delivered  them  to  be  carried.  The  only  authority  which 
has  been  generally  relied  on  for  this  doctrine,  is  the  old  case 
of  Yorke  v.  Grenaugh,  in  the  trial  of  which  Lord  Chief 
Justice  Holt  presided  ; l  and  as  its  authority  has  been,  in  one 
instance,  repudiated  in  this  country,  it  is  proper  it  should  be 
stated  more  circumstantially  than  it  has  been.  The  decision 
was,  that  if  a  horse  be  put  up  at  the  stable  of  an  inn  by  a 
guest,  the  innkeeper  has  a  lien  on  the  animal  for  its  keep, 
whether  the  animal  be  the  property  of  the  guest  or  of  some 
third  party  from  whom  it  has  been  fraudulently  taken,  or 
stolen.  It  was  excepted  by  the  counsel  that,  "  since  the 
horse  was  brought  to  the  inn  by  a  stranger,  the  innkeeper 
cannot  detain  it  for  its  meat  against  the  right  owner ;  for  it 
may  be  that  this  traveller  was  a  wrong-doer,  or  a  robber." 
But  the  answer  of  the  Court  was :  "  Supposing  that  this 
traveller  was  a  robber,  and  had  stolen  this  horse ;  yet  if  he 
comes  to  an  inn,  and  is  a  guest  there,  and  delivers  the  horse 
to  the  innkeeper,  (who  does  not  know  it,)  the  innkeeper  is 
obliged  to  accept  the  horse ;  and  then  it  is  very  reasonable, 
that  he  shall  have  a  remedy  for  payment,  which  is  by  re- 
tainer. And  he  is  not  obliged  to  consider,  who  is  owner  of 
the  horse,  but  whether  he  who  brings  him  is  his  guest  or 
not."  Lord  Chief  Justice  Holt  cited  the  case  of  an  Exeter 
common  carrier ;  "  where  A.  stole  the  goods,  and  delivered 
them  to  the  Exeter  carrier,  to  be  carried  to  Exeter,  the  right 
owner  finding  the  goods  in  possession  of  the  carrier  demand- 
ed them  of  him,  upon  which  the  carrier  refused  to  deliver 
without  being  paid  for  the  carriage.  The  owner  brought 
trover,  and  it  was  held,  that  he  might  justify  detaining 
against  the  right  owner  for  the  carriage  ;  for  when  A.  brought 
them  to  him,  he  was  obliged  to  receive  them,  and  carry 
them ;  and  therefore,  since  the  law  compelled  him  to  carry 
them,  it  will  give  him  remedy  for  the  premium  due  for  the 
carriage.2 

1  Yorke  u.  Grenaugh,  2  Ld.  Raym.  R.  867. 

2  The  Reporter  saya,  the  doctrine  had  always  been  maintained  by  Holt ; 


360  LAW    OF   CARRIERS.  [CH.  IX. 

§  364.  The  doctrine,  that  a  common  carrier  and  a  com- 
mon innkeeper  may  have  a  lien  on  property  delivered  to 
them,  because  the  one  is  bound  to  receive  goods  which  are 
offered  for  transportation,  and  the  other  is  bound  to  receive 
guests  with  their  effects,  it  has  been  said,  rests  upon  the 
authority  alone  of  the  above  case  of  Yorke  v.  Grenaugh.1 
But  it  was  held,  in  Johnson  v.  Hill,  at  nisi  prius,  in  1822, 
that  if  A.,  under  color  of  legal  proceeding,  wrongfully  seize 
the  horse  of  B.,  and  take  it  to  an  inn  where  it  is  kept  for 
several  days,  the  landlord  has  a  lien  upon  the  horse  for  the 
keep,  and  may,  therefore,  refuse  to  deliver  up  the  horse  to 
B.,  until  the  keep  is  paid ;  unless  the  landlord  knew  that  A. 
was  a  wrong-doer  in  seizing  the  horse.2  Then  again,  there 
is  said  to  be  an  obvious  ground  of  distinction  between  the 
cases  of  carrying  goods  by  a  common  carrier,  and  furnish- 
ing keeping  for  a  horse  by  an  innkeeper ;  that,  in  the  latter 
case,  it  is  equally  for  the  benefit  of  the  owner  to  have  his 
horse  fed  by  the  innkeeper,  in  .whose  custody  he  is  placed, 
whether  left  by  a  thief  or  by  himself  or  agent ;  in  either 
case  food  is  necessary  for  the  preservation  of  his  horse,  and 
the  innkeeper  confers  a  benefit  upon  the  owner  by  feeding 
him.3 

§  365.  In  the  Supreme  Court  of  Michigan,  in  1843,  it  was 

and  that  a  common  innkeeper  may  detain  a  horse  brought  by  a  wrong-doer 
against  the  true  owner,  he  cites  3  Bulstr.  R.  269,  and  1  Roll.  R.  449. 
The  doctrine  is  stated  thus,  by  Mr.  Metcalf  in  his  learned  note  in  Yelver- 
ton,  R.  on  the  authority  of  Yorke  v.  Grenaugh,  wi.  sup. 

1  Fitch  v.  Goodell,  &c.  1  Doug.  (Mich.)  R.  1. 

2  Johnson  v.  Hill,  3  Stark.  R.  172.     If  a  person  is  stopped  with  a 
horse  under  suspicious  circumstances,  and  the  horse  is  placed  at  an  inn 
by  the  police,  the  innkeeper  has  no  lien  on  the  horse  for  its  keep;  and  if 
an  auctioneer,  by  the  direction  of  the  innkeeper,  sell  the  horse  for  its 
keep,  he  is  liable  to  be  sued  in  trover  by  the  owner  of  the  horse.     Binns 
v.  Pigot,  9  C.  &  Payne,  R.  208. 

3  Fitch,  &c.  ub.  sup.;  Abbott,  C.  J.,  in  Greenway  v.  Fisher,  1  C.  & 
Payne,  R.  190,  simply  says: — *"  As  to  a  carrier,  if,  while  he  has  goods, 
there  be  a  demand  and  refusal,  trover  will  lie."     He  does  not  say  but  that 
a  carrier,  may,  in  all  cases,  have  a  lien. 


CH.  IX.]  RIGHT   OF   LIEN.  361 

expressly  held,  contrary  to  the  reasoning  of  the  Court  in 
Yorke  v.  Grenaugh,  and  to  the  decision  in  the  Exeter  case 
there  cited  by  Lord  Chief  Justice  Holt,  that  the  doctrine  of 
caveat  emplor  applies,  with  the  same  force,  to  common  car- 
riers as  to  other  persons ;  and  that  if  common  carriers,  in 
any  way,  acquire  possession  of  property  without  consent  of 
the  owner,  they,  like  other  persons,  may  be  compelled  to 
restore  it  to  such  owner ;  and  that  the  obligation  of  a  com- 
mon carrier  to  receive  and  carry  all  goods  offered,  was 
subject  to  the  condition  that  the  person  offering  the  goods 
has  authority  to  do  so.  The  Court  reasoned  (and  it  is  sub- 
mitted if  there  be  not  force  in  the  argument)  that  if  a  com- 
mon carrier  is  in  all  cases  entitled  to  demand  the  price  of 
carriage  before  he  receives  the  goods,  and  which,  if  not  paid, 
he  may  refuse  to  take  charge  of  them,  and  if  he  may  reject 
goods  offered  by  a  wrong-doer ;  he  is  bound  to  take  care, 
that  the  person  from  whom  he  receives  them,  has  authority 
to  place  them  in  his  custody.  In  this  case,  the  plaintiffs,  by 
their  agents,  shipped  goods  at  Port  Kent,  on  Lake  pham- 
plain,  consigned  to  them  at  Mashall,  Michigan,  care  of  H.  C. 
&  Co.,  Detroit,  by  the  New  York  and  Michigan  Line,  who 
were  common  carriers,  and  with  whom  they  had  previously 
contracted  for  the  transportation  of  the  goods  to  Detroit,  and 
paid  the  freight  in  advance.  During  the  transit  of  the  goods, 
and  before  they  reached  Buffalo,  they  came  into  the  posses- 
sion of  carriers  doing  business  under  the  name  of  the  Mer- 
chants' Line,  without  the  knowledge  or  assent  of  the  plain- 
tiffs, and  were  by  them  transported  to  Detroit,  and  consigned 
to  H.  P.  &  Co.,  of  Buffalo,  to  the  care  of  the  defendants, 
and  delivered  to  the  defendants,  who  were  personally  igno- 
rant of  the  manner  in  which  they  came  into  the  possession 
of  the  Merchants'  Line,  and  of  the  contract  of  the  plaintiffs- 
with  the  New  York  and  Michigan  Line ;  although  they,  and 
also  H.  P.  &  Co.  were  agents  for,  and  part  owners  in,  the 
Merchants'  Line.  The  defendants  being  warehousemen  and 
forwarders,  received  the  goods  and  advanced  the  freight 
upon  them  from  Troy,  New  York,  to  Detroit.  On  demand 

31 


362  LAW   OF   CARRIERS.  [CH.  IX. 

of  the  goods  by  the  plaintiffs,  the  defendants  refused  to  de- 
liver them,  until  the  freight  advanced  by  them,  and  their 
charges  for  receiving  and  storing  the  goods  were  paid ; 
claiming  a  lien  on  the  goods  for  such  freight  and  charges. 
It  was  held,  in  an  action  of  replevin  brought  for  the  goods, 
that  the  plaintiffs  were  entitled  to  the  possession  of  the  goods, 
without  payment  to  the  defendants  of  such  freight  and 
charges  ;  and  that  the  defendants  had  no  lien  upon  the  goods 
for  the  same.1 

§  366.  In  the  above  case,  the  case  of  Buskirk  v.  Puring- 
ton,  in  New  York,  was  relied  on  as  authority.  There  pro- 
perty was  sold  upon  condition ;  the  buyer  failed  to  comply 
with  the  condition,  and  shipped  the  goods  on  board  the 
vessel  of  the  defendants.  On  the  defendants'  refusal  to 
deliver  the  goods  to  the  owner,  he  brought  trover,  and  was 
allowed  to  recover  their  value,  although  the  defendants 
insisted  on  their  right  of  lien  for  the  freight.2 

§  367.  There  was  a  fraud  committed  upon  the  true  owner 
of  the  goods  in  the  case  of  King  v.  Richards,  in  Pennsyl- 
vania : 3  and  the  decision  of  the  Court  in  that  ease  was,  that 
where  A.  had  delivered  goods  to  a  common  carrier,  which 
he  had  fraudulently  obtained  from  the  true  owner,  the  car- 
rier might  prove,  in  an  action  against  him  by  A.,  that  the 
goods  had  been  obtained  from  the  true  owner,  and  that, 
upon  demand  made,  he  had  delivered  them  up  to  the  latter. 
But  in  giving  their  opinion,  by  Kennedy,  J.,  the  Court  say, 
that  it  is  sufficient  in  such  cases  for  the  bailee,  that  he  is 
authorized  by  law  to  retain  the  goods  in  his  possession  until 
he  is  paid  or  tendered  the  amount  of  what  he  is  entitled  to  for 

1  Fish,  &c.  v.  Newberry,  &c.  1  Doug.  (Mich.)  R.  1,  and  ub.  sup. 

2  Buskirk  v.  Purington,  2  Hall,  (N.  Y.)  R.  561.     The  decision  in  this 
case  confirmed  in  Collman  v.  Collins,  Ib.  569. 

3  King  v.  Richards,  6  Whart.  (Penn  )  R.  418;  and  see  the  case  cited 
ante,  $  337,  and  the  cases  cited  in  connection  with  the  point  decided, 

336. 


CH.  IX.]  RIGHT   OF  LIEN.  363 

keeping  or  carrying  them.  So  that,  in  this  case,  the  doctrine 
laid  down  in  Yorke  v.  Grenaugh,  is  clearly  recognized. 
The  title  of  the  true  owner  to  recover,  seems  indeed  to  have 
been  considered  quite  clear  in  Yorke  v.  Grenaugh,  if  he  had 
only,  anterior  to  the  commencement  of  his  action,  tendered 
to  the  defendant  the  money  due  for  the  keeping  of  the  horse, 
in  the  one  case,  or  the  sum  due  for  the  freight  of  the  goods, 
in  the  other.1 

§  368.  The  lawful  possession  of  goods  being  once  acquired 
for  the  purpose  of  carriage,  the  carrier  is  not  obliged  to 
restore  them  to  the  owner  again,  even  if  the  carriage  be  dis- 
pensed with,  unless  upon  being  paid  his  due  remuneration; 
for  by  the  delivery  he  has  already  incurred  certain  risks.2 
If  a  person  go  to  a  coach  office  and  direct  that  a  place  be 
booked  for  him  by  a  particular  coach,  and  that  be  done,  and 
he  leaves  his  portmanteau,  the  coach  proprietor  will  have  a 
lien  on  the  portmanteau  for  something,  but  not  for  the  full 
amount  of  the  coach  fare ;  but  if  the  party  merely  leave  his 
portmanteau  while  he  goes  to  inquire  if  there  be  an  earlier 
coach,  and  no  place  be  actually  booked,  the  coach  proprietor 
has  no  lien  at  all.3  But  cases  of  this  sort  depend  much  upon 
the  circumstances.  A  contract  was  made  in  South  Carolina 
during  the  war,  with  a  wagoner,  to  carry  a  load  of  cotton 
from  Lancaster  to  Richmond,  at  a  specified  sum  per  hundred, 


1  la  the  Court  of  Queen's  Bench,  January,   1840,  it  was  held,  that 
where  a  person  brings  a  carriage  to  an  hotel,  at  which  he  stops  as  a  guest, 
the  hotel  keeper  has  a  lien  upon  the  carriage  for  its  standing  room,  and  any 
labor  bestowed  upon  it :  the  innkeeper  4s  not  bound  to  inquire  whether  the 
carriage  really  belongs  to  the  guest,  but  if  he  received  it  bona  fide,  he  may 
retain  it  against  the  real  owner,  however  the  guest  may  have  obtained  pos- 
session of  it ;  but  whether  he  has  a  lien  for  the  whole  bill  incurred  by  the 
guest,  quare.     Turrill  v.  Crawby,  13  Jur.  878,  and  Law  Rep.  (Boston) 
for  January,  1850,  p.  478. 

2  Siory  on  Bailm.  §  685  ;  Columbian  Ins.  Co.  v.  Ashby,  13  Peters, 
'U.  S.)  R.  331  ;  Herbert  v.  Hallett,  3  Johns.  Cases,  93. 

3  Higgins  v.  Bretherton,  2  Carr.  &  Payne,  R.  2. 


364  LAW   OF   CARRIERS.  [CH.  IX. 

for  transportation.  The  carrier  attended  at  the  place,  and 
while  loading  his  wagon  with  the  defendant's  cotton,  news 
of  peace  arrived,  and  he  determined  not  to  send  the  cotton, 
and  made  the  plaintiff  unload.  It  was  held,  that  an  action 
would  lie  for  the  price  of  carrying  the  cotton.1  In  one  case 
it  appears  that  the  detention  can  only  be  for  the  amount  in- 
curred for  carriage ;  as  where  goods  were  taken  by  the 
owner  from  the  carrier's  wagon,  it  was  held,  that  the  carrier 
had  no  claim  for  booking ; 2  and  consequently  he  could  set 
up  no  lien  before  delivery. 

§  369.  As  the  rights  as  well  as  the  liabilities  of  carriers  by 
land,  extend,  in  the  absence  of  any  statute  to  the  contrary, 
to  carriers  by  water,  the  owners  or  masters  of  general  ships 
and  vessels,  both  on  the  high  seas  and  on  navigable  rivers 
and  canals,  are  entitled  to  the  same  particular  lien  for  the 
price  of  the  carriage  of  goods  delivered  to  them  for  trans- 
portation ;  and  it  is  so  both  by  the  Common  Law  and  by  the 
written  maritime  codes  of  Europe.3 

§  370.  But  according  to  the  principle  by  which  all  liens 
by  the  Common  Law  are  regulated,  if  the  master  of  a  vessel 
once  part  with  the  voluntary  possession  of  the  goods  out  of 
his  own  or  his  agent's  hands,  he  loses  his  lien  upon  them, 
and  is  not  authorized  by  law  to  reclaim  them.4  The  inten- 
tion to  relinquish  the  possession  must,  however,  be  clearly 
manifested.  The  captain  of  a  ship  was  allowed  a  lien  on  a 
part  of  a  cargo  which  had  been  removed  into  a  lighter  along 
side  of  the  ship  sent  by  the  vendee,  but  which  the  captain 
afterwards  fastened  to  the  ship's  side,  to  prevent  its  final 
removal.5 

1  Davis  v.  Crawford,  4  Const.  (S.  C.)  R.  401. 

2  Lambert  v.  Robinson,  1  Esp.  R.  119. 

3  Abbott  on  Shipp.  Pt.  4,  ch.  2,  p.  284. 

4  Ibid.  p.  246;  Artaza  v.  Smallpiece,  1  Esp.  R.  23;    Bigelow  t>.  Hea- 
ton,  4  Denio,  (N.  Y.)  R.  496. 

5  Soldergreen  v.  Flight,  cited  in  Hanson  v.  Meyer,  6  East,  R.  622. 


CH.  IX.] 


RIGHT   OF   LIEN. 


§  371.  Where  the  master  of  a  ship,  in  obedience  to  revenue 
regnlati  >ns,  lands  goods  at  a  particular  wharf,  he  does  not 
thereby  lose  his  lien  on  them  for  the  freight.  It  is  true,  Lord 
Kenyon  doubted  whether  the  captain  parted  with  his  lien, 
under  such  circumstances  ; l  but  in  Wilson  v.  Kymer,2  it  was 
expressly  held,  that  the  lien  of  the  ship-owner  for  freight 
continued  after  the  landing  of  the  cargo  at  the  West  India 
docks,  although  he  gave  no  notice  to  the  company  to  retain 
the  cargo  until  the  payment  of  the  freight.  In  England,  if 
goods  are  placed  in  the  West  India  or  East  India  Company's 
Dock  warehouses,  the  shipmaster  may  give  notice  to  those 
bodies  to  detain  them  until  the  freight  be  paid.3 

§  372.  Where  goods  are  not  required  to  be  landed  at  any 
particular  dock,  and  the  common  practice  is  to  land  them  at 
a  public  wharf,  and  direct  the  wharfinger  not  to  part  with 
them  until  the  charges  upon  them  are  paid ;  in  such  case  the 
wharfinger  becomes  the  ship-master's  agent,  and  the  goods 
remain  constructively  in  the  possession  of  the  latter.4 

§  373.  But  the  delivery  of  a  portion  of  several  parcels  of 
goods  belonging  to  one  owner  and  carried  on  the  same  voy- 
age, does  not  defeat  a  lien  upon  the  remainder,  for  the  whole 
freight.5  But  if  there  be  two  contracts  to  carry  with  differ- 
ent termini  to  the  voyage  in  each  contract,  no  lien  attaches 
for  freight  under  the  one  contract,  upon  goods  shipped  under 


1  Ward  v.  Felton,  1  East,  R.  507. 

2  Wilson  v.  Kymer,  1  M.  &  Sel.  R.  157. 

3  Faith  v.  E.  Ind.  Co.,  4  B.  &  Aid.  R.  630;  Horncasrle  v.  Farran, 
3  B.  &  Aid.  R.  497.     The  London  Dock  Act,  45  Geo.  3,  c    58,  s.  15, 
expressly  reserves  the  lien  for  freight.     By  6  Geo.  4,  c.  107,8.  134,  if 
goods  are  landed,  and  sold  by  the  officers  of  the  customs,  the  freight  not 
having  been  paid,  the  produce  of  the  sale  is  applicable,  in  the  first  place, 
to  its  liquidation.      Abbott  on   Shipp.,  300,  and  Cross  on   Lien,  &c. 
291, n. 

4  Abbott  on  Shipp.  supra. 

5  Abbott  on  Shipp.  377;  Cross  on  Lien,  290. 

31* 


366  LAW    OF    CARRIERS.  [CH.  IX. 

the  other,  and  improperly  detained  on  board  by  the  carrier  ; l 
for  in  this,  as  in  all  other  cases,  no  lien  can  be  acquired  by 
a  possession  which  is  unlawful ;  and  hence  no  lien  attaches 
if  the  goods  directed  to  one  place  be  improperly  carried  to 
another.2 

§  374.  An  exception  to  the  rule,  that  a  complete  delivery 
will  at  all  times  divest  the  lien,  is  that  if  the  possession  be 
put  an  end  to  by  fraud,  the  lien  revives  if  possession  be  re- 
covered.3 And  a  common  carrier  who  is  induced  to  deliver 
goods  to  the  consignee  by  a  false  and  fraudulent  promise  of 
the  latter,  that  he  will  pay  freight  as  soon  as  they  are  re- 
ceived, may  disaffirm  and  sue  the  consignee  for  possession, 
in  replevin.  It  is  like  the  delivery  of  goods  to  a  fraudulent 
purchaser,  or  to  a  purchaser  who  receives  the  goods  with  an 
intent  not  to  pay,  which  will  avoid  the  sale.4 

§  375.  The  right  of  lien  is  not  confined  to  freight  and 
merchandise,  but  it  extends  to  the  baggage  of  a  passenger, 
for  the  recovery  of  his  passage-money ;  although  the  master 
has  no  lien  on  the  passenger  himself,  or  the  clothes  which  he 
is  actually  wearing  when  about  to  leave  the  vessel.5 


1  Bernal  v.  Pirn,   1  Gale,  R.  17  ;    Soldergreen  v.  Flight,  6  East,  R. 
622. 

2  Wallace  v.  Woodgate,  R.  &  M.  R.  193  ;  and  see  Abbott  on  Shipp. 
377.     If  the  freight  is  all  consigned  to  the  same  person,  and  the  master 
make  a  delivery  of  part  of  the  goods  to  the  consignee,  he  may  retain  the 
residue  even  against  a  purchaser,  until  payment  of  freight  of  the  whole. 
But  if  the  goods  are  sold  to  different  persons  by  the  consignee,  and  part 
is  delivered,  the  master  has  not  a  lien  upon  the  residue,  so  as  to  compel 
one  purchaser  to  pay  freight  for  what  has  been  delivered  to  another  pur- 
chaser; but  only  for  what  has  been  purchased  by  himself.     See  Solder- 
green  v.  Flight,  ub.  sup.,  and   note  2  to  p.  377,  Am.  Ed.  Abbott  on 
Shipping. 

3  Bigelow  v.  Heaton,  6  Hill,  (N.  Y.)  R.  43. 

<  Bristol  v.  Wilsmore,  1  B.  &  Cress.  R.  514  ;  Ash  v.  Putnam,  1  Hill, 
(N.  Y  )  R.  302,  and  the  cases  there  cited. 
5  Wolf  v.  Summers,  before  Lawrence.  J.,  at  Guildhall,  2  Campb.  R. 


CH.  IX.]  RIGHT   OF  LIEN.  367 

§  376.  The  owner  of  a  ship  retaining  the  possession  of  it, 
has  a  lien  on  the  cargo,  for  the  hire,  under  a  charter-party.1 
But  it  is  necessary,  that  the  party  so  retaining  should  be 
legally  in  possession  of  the  ship ;  for  a  person  cannot  have 
a  lien  upon  the  goods  who  has  not  in  law  the  possession  of 
them  ; 2  and  this  depends  upon  the  terms  of  the  charter-party 
as  explained  by  the  intention  of  the  parties  apparent  therein. 
By  the  stipulations  contained  in  some  charter-parties,  the 
owners  retain  such  a  control  over  the  ship  as  to  be  consid- 
ered in  the  legal  possession  of  the  ship  and  goods  during  the 
voyage,  by  means  of  the  master  and  crew  as  their  servants ; 
and  consequently,  on  arriving  at  its  destination,  the  goods  on 
board  being  in  the  eye  of  the  law  in  their  possession,  they 
have  a  lien  for  the  stipulated  hire  of  the  ship.  On  the  other 
hand,  there  are  to  be  found  instances  wherein  the  charter- 
parties  have  contained  such  apt  and  comprehensive  words  of 
demise,  that  the  possession  has  been  thereby  actually  trans- 
ferred from  the  owner  to  the  charterer ;  in  which  case,  not 

631.  In  genera],  the  law  in  relation  to  passage-money  of  passengers  is 
the  same  as  that  respecting  freight.  Rowland  v.  The  Lavina,  1  Peters, 
(Adm.)  R.  126.  An  innkeeper  possesses  only  the  right  of  specific  lien 
for  debts  accruing  contemporaneously  with  possession,  and  it  was  formerly 
considered,  that  he  possessed  not  only  a  right  of  lien  on  the  property  of 
his  guest,  but  a  power  of  personal  detention  until  payment.  But  this 
preposterous  doctrine,  supported  only  by  the  obiter  dictum  of  Mr.  Justice 
Eyre,  in  the  case  of  Newton  v.  Tring,  reported  in  1  Show.  R.  269,  and 
the  yet  weaker  authority  of  a  case  mentioned  by  Mr.  Wentworth,  in  his 
Precedents,  (see  Cross  on  Lien,  &c  343,)  has  since  been  overruled  in  the 
recent  case  of  Sunbolf  ».  Alford,  3  M.  &  Welsh.  R.  148.  Carriers  of 
passengers  both  by  land  and  water,  being  liable  as  common  carriers  for  the 
baggage  of  the  passengers,  and  being  bound  to  receive  it,  their  right  of 
lien  on  the  baggage  must  of  course  be  admitted.  As  to  the  liability  of 
carriers  of  passengers  as  common  carriers  of  baggage,  see  ante,  $  107,  et 
seq.;  317,  el  seq. 

1  Abbott  on  Shipp.  289  ;  Cross  on  Lien,  &c.  300.     See  the  judgment 
of  Mr.  Justice  Kichardson  in  Christie  v.  Lewis,  2  B.  &  Bing.  R.  442  ; 
Lane  v.  Penniman,  4  Mass.  R.  91  ;  Portland  Bank  v.  Stubbs,  6  Ibid,  423. 

2  See  Jones  on  Carr.  102;  Saville  v.  Campion,  2  B.  &  Aid.  R.  503  ; 
and  see  Abbott  on  Shipp.  289,  et  seq. 


368 


LAW   OF   CARRIERS. 


[CH.  IX. 


having  the  possession,  the  former  can  exercise  no  right  of 
lien  over  the  goods.  On  this  account,  it  is  of  much  import- 
ance in  every  case,  to  ascertain  in  whom  the  possession  is, 
in  order  to  ascertain  who  is  entitled  to  the  lien. 

§  377.  The  broad  principle  formerly  maintained  that,  in 
the  case  of  a  chartered  ship,  the  charterer,  during  the  exist- 
ence of  the  charter-party,  was,  to  all  intents  and  purposes, 
the  owner  of  the  ship,  and  that,  therefore,  when  goods  were 
put  on  board  by  him  in  that  character,  the  owner  had  no 
legal  right  to  resume  possession  of  the  ship,  until  the  goods 
were  unloaded,  and  had  consequently  no  right  to  detain  the 
goods,  has  been  much  narrowed  and  qualified  by  subsequent 
decisions.1  The  Common  Law  now  construes  charter-parties 
as  near  as  may  be  according  to  the  intention  of  the  parties, 
and  not  according  to  the  legal  sense  of  the  terras  of  them. 
Where  the  ship  is  let  for  a  term  of  years,  and  the  lessee  is 
to  appoint  and  pay  the  master  and  crew  and  provide  for  the 
repairs,  the  possession  passes  to  him.2  But  mere  words  de- 
noting a  demise  of  the  ship  do  not  necessarily  preclude  the 
conclusion,  that  the  possession  of  the  ship  has  continued  in 
the  owner  himself.  Thus,  where  the  owner  of  a  ship  had 
entered  into  a  charter-party  with  a  freighter,  by  which  the 
former  "  granted  and  to  freight  let"  and  the  latter  "  hired 
and  to  freight  took "  for  a  voyage  out  and  home  ;  it  was 
held,  that  taking  the  whole  charter-party  into  consideration, 
the  possession  of  the  ship  did  not  pass  to  the  freighter,  but 
remained  in  the  owner,  notwithstanding  the  words  of  grant 
used  in  its  commencement ;  and  that  the  mere  circumstance 
of  his  having  entered  into  an  agreement  with  the  charterer 
as  to  the  mode  by  which  he  should  be  paid  for  freight,  did 


1  Cross  on  Lien,  &c.  301  ;  and  see  Hutton  v.  Bragg:,  7  Taunt.  R.  14, 
since  overruled,  Saville  v.  Campion,  2  B.  &  Aid.  R.  503,  and  Christie  v. 
Lewis,  2  B.  &  Bing.  R.  410,  and  Abbott  on  Shipp.  290-298. 

2  Fowler  v.  Kymer,  3  East,  R.  396,  and  cited  in  Abbott  on  Shipp.  290; 
and  see  ante,  §  89,  147. 


CH.  IX.]  RIGHT  OF  LIEN.  369 

not  divest  him  of  his  lien  on  the  cargo ;  and  it  made  no 
difference  that  he  had  delivered  the  homeward  cargo  to  the 
consignees,  and  received  the  freight  due  upon  the  bills  of 
lading,  which  was  different  from  that  due  on  the  charter- 
party.1 

§  378.  On  the  other  hand,  although  the  charter-party  con- 
tain no  words  of  actual  demise,  there  may  be  stipulations  in 
it  equivalent,  in  their  effect,  to  an  actual  parting  with  the 
ship  pro  hac  vice.2  It  is  in  fact  to  be  regretted,  upon  a  re- 
view of  all  the  authorities  respecting  the  ship-owner's  lien 
for  freight,  "  that  great  uncertainty  has  been  introduced  by 
their  almost  irreconcilable  conflict,  into  the  construction  of 
contracts  of  charter-party.  The  maritime  law,  so  far  as  it 
relates  to  the  owners  and  masters  of  ships,  is  founded  upon 
the  principle,  that  the  master  is  the  servant  of  the  owner. 
As  such  servant  the  master  is  intrusted  with  authority  over 
the  property  in  his  charge  much  more  extensive  than  that 
which  the  lessee  of  a  vessel  for  a  voyage  or  term  could  have 
power  to  delegate.  By  the  Common  Law,  also,  he  possesses 
the  same  authority.  By  the  master's  contract  with  the  sub- 
freighters,  the  owner  of  a  chartered  ship  is  bound  —  by  his 
bottomry  bond,  the  ship  itself  may  be  pledged  to  an  extent 
much  beyond  the  interest  of  the  charterer — to  him  is  in- 
trusted the  certificate  of  registry  on  which  the  names  of  the 
proprietors  and  the  incumbrances  on  their  property  in  the 
ship  appear  —  for  losses  occurring  through  his  misconduct 
and  that  of  the  mariners  engaged  by  him,  the  '  owners '  are 
responsible  to  the  extent  of  the  value  of  the  ship  and  her 
freight ;  and  yet  when  it  becomes  necessary  to  enforce  the 
Common  Law  security  for  that,  which  alone  makes  the  ship 
valuable  to  the  owner  —  the  freight  earned  by  her  —  by  dint 


1  Christie  t>.  Lewis,  2  B.  &  Bing.  R.  410. 

2  Newberry  v.  Colvin  (in  error,)  1  Cr.  &  Jer.  R.  192,  7  Bing.  R.  190, 
overruling  S.  C.  nom.  Colvin  v.  Newberry,  8  B.  &  Cress.  R.  163  ;  and 
see  Abbott  on  Shipp.  298,  299. 


370  LAW   OF   CARRIERS.  [CH.  IX. 

of  subtle  distinctions  between  the  contract  of  locatio  rei  et 
operarum  and  the  contract  of  locatio  operis,  the  possession 
of  the  master  is  made  out  not  to  be  the  possession  of  the 
owner.  " 1 

§  379.  This  highly  vexed  question,  and  so  important  in  its 
consequences  to  the  claim  of  lien,  and  the  responsibilities  of 
ownership,  depending  on  the  inquiry,  whether  the  lender  or 
hirer  under  a  charter-party,  be  the  owner  of  the  ship  for  the 
voyage,  it  is  a  dry  matter-of-fact  question,  who,  by  the 
charter-parly,  has  the  possession,  command,  and  navigation 
of  the  ship.  If  the  general  owner  retains  the  same,  and 
contracts  to  carry  a  cargo  on  freight  for  the  voyage,  the 
charter-party  is  a  mere  affreightment,  sounding  in  covenant ; 
and  the  freighter  is  not  clothed  with  the  character  or  legal 
responsibility  of  ownership.  The  general  owner,  in  such 
case,  is  entitled  to  the  freight,  and  may  sue  the  consignee  on 
the  bills  of  lading  in  the  name  of  the  master  ;  or  he  may 
enforce  his  claim  by  detaining'  the  goods  until  payment,  the 
law  giving  him  a  lien  for  freight.  But  when  the  freighter 
hires  the  possession,  command,  and  navigation  of  the  ship, 
for  the  voyage,  he  becomes  the  owner,  and  is  responsible  for 
the  conduct  of  the  master  and  mariners ;  and  the  general 
owner  has  no  lien  for  the  freight,  because  he  is  not  the  car- 
rier for  the  voyage.  This  is  the  principle  declared  and  acted 
upon  in  the  greatly  litigated  and  ably  discussed  case  of 
Christie  v.  Lewis.2  And  it  is  the  principle  declared  by  the 
Supreme  Court  of  the  United  States  in  Marcardier  v.  The 
Chesapeake  Insurance  Company,3  and  Gracie  v.  Palmer.4 

1  Abbott  on  Shipp.  300,  301,  (7th  Eng.  Edit,  by  Shee.) 

2  Christie  v.  Lewis,  ub.  sup. 

3  Marcardier  v.  Chesapeake  Tnsur.  Company,  8  Cranch,  (U.  S.)  R.  49. 

4  Gracie  v.  Palmer,  8  Wheat.  (U.  S.)  R.  605  ;  Note  by  Mr.  Shee  to 
Abbott  on  Shipp.  p.   302,  (5th  Am.  edit.)     And  see  the  cases  of  the 
Schooner  Volunteer,  1  Sumn.  (Cir.  Co.)  R.  550;  Certain  Logs  of  Ma- 
hogany, 2  Ib.  589;   Ruggles  r.  Bucknor,  1  Paine,  (Cir.  Co.)  R.  358; 
and  other  cases  cited  by  the  American  editors  to  Abbott  on  Shipp.  (5th 
Am.  edit.)  note  to  p.  289. 


CH.  IX.] 


RIGHT   OF   LIEN. 


371 


§  380.  Although  the  exercise  of  the  ship-owner's  right  of 
lien  may  be  upheld  in  cases  of  doubtful  construction,  an 
express  contract  is  the  most  sure  ground  upon  which  that 
right  can  rest.1  He  may  reserve  that  right  to  himself  by  a 
full  and  unequivocal  declaration  of  intention  in  the  charter- 
party,  that  he  shall  retain  the  right  of  lien  upon  the  lading 
of  the  vessel.  This  express  contract  amounts,  in  fact,  to  a 
covenant  on  the  part  of  the  charterer,  that  whatever  may  be 
the  legal  operation  of  the  charter-party,  as  between  them- 
selves, the  charterer's  possession  of  the  ship  shall  be  the 
possession  of  the  owner,  so  far  as  the  right  of  the  latter  on 
the  cargo  is  in  any  way  concerned.2  And  if  such  lien  be 
expressly  reserved  by  a  charter-party,  it  attaches  on  the 
goods,  though  assigned  by  the  charterer,  previous  to  their 
conveyance.  Thus,  where  it  appeared,  that  the  owner  of  a 
ship  had  made  such  reservation,  and  the  charterer  had  pur- 
chased the  goods  and  put  them  on  board,  and  subsequently 
transferred  them,  with  a  stipulation  that  they  should  be 
conveyed  to  their  destination,  it  was  held,  that  even  against 
an  indorsee  of  the  lading,  they  were  subject,  not  only  to 
that  particular  freight,  but  to  the  ship  owner's  lien  for  a 
balance  due  to  him  under  the  charter-party,  whether  possess- 
ion of  the  ship  was,  by  the  charter-party,  completely  out  of 
the  ship-owner,  and  vested  in  the  charterer,  or  not.3 

§  381.  No  lien  exists  by  virtue  of  unliquidated  damages. 
Where  the  freighter  of  a  ship,  for  instance,  covenanted  that 
if  she  should  not  be  fully  laden,  he  would  not  only  pay  for 
the  goods  on  board,  but  for  so  much  also  in  addition,  as  the 
ship  would  have  carried,  for  which  he  had  before  stipulated 
to  pay  freight  according  to  the  different  rates  for  three  de- 
scriptions of  goods  ;  it  was  held,  that  the  ship-owner  had 
no  lien  upon  the  goods  actually  on  board  for  the  amount  of 


1  Abbott,  &c.  supra. 

2  Cross  on  Lien,  306. 


uu  i_iien,  auo. 
3  Small  v.  Moates,  9  Bing.  R.  579,  and  cited  in  Abbott,  &c.  supra. 


372  LAW   OF   CARRIERS.  [CH.  IX. 

dead  freight  ;  in  other  words,  for  the  compensation  in  dam- 
ages, which  he  was  entitled  to  for  the  freighter's  breach  of 
contract  in  not  putting  a  full  loading  on  board,  which 
damages  were  unliquidated.1 

§  382.  In  replevin  for  tobacco,  it  appeared,  that  an  agree- 
ment was  entered  into  between  A.  M.  and  H.  G.  to  execute 
a  charter-party  for  a  vessel,  the  defendant  captain,  from  B. 
to  A.,  but  which  charter-party  was  not  executed.  That 
H.  G.  put  the  tobacco  on  board  the  vessel,  and  afterwards 
sold  it  to  the  plaintiff,  and  gave  an  order  for  it  on  the  defend- 
ant, who  refused  to  deliver  it,  but  insisted  that  the  cargo 
should  be  completed,  and  that  the  vessel  should  proceed  to 
perform  the  voyage,  and  that  the  freight  should  be  paid, 
which  H.  G.  and  the  plaintiff  refused  to  do.  It  was  held, 
that  the  defendant  had  no  lien  on  the  tobacco  for  freight, 
no  freight  being  in  fact  due  before  the  commencement  of  the 
voyage  ;  and  that,  if  an  injury  had  been  sustained  by  the 
owner  of  the  vessel,  in  consequence  of  the  violation  of  the 
contract  on  the  part  of  H.  G.,  the  proper  remedy  was  to  be 
sought  by  an  action  against  him  for  the  unliquidated  damage.2 

§  383.  Nor  will  a  mutual  obligation  in  a  penal  sum  on  the 
parties,  the  ship,  the  tackle,  or  the  merchandise  consigned, 
alter  the  rights  of  the  owner  in  this  respect,  so  as  to  entitle 
him  to  a  right  of  lien  on  breach  of  the  covenants  contained 
therein.  The  lien  at  Common  Law  exists  only  in  respect  of 
freight  actually  earned  by  the  arrival  of  the  goods  at  the 
stipulated  place  of  destination.  Covenants,  therefore,  for 
demurrage,  or  for  providing  a  full  cargo,  cannot  be  enforced 
b  ythe  specific  remedy  of  lien,  though  the  charter-party  con- 
tain such  penal  clause.  The  remedy  for  such  matters  rests 
entirely  in  covenant,  and  the  mere  penal  clause  will  not 

1  Philip  v.  Rodie,  15  East,  R.  547,  and  cited  in  Abbott  on  Shipp.  286, 
and  Cross  on  Lien,  &c.  307. 

2  Burgess  v.  Gun,  3  H.  &  Johns.  (Md.)  R.  225. 


CH.  IX.]  RIGHT   OF  LIEN.  373 

extend  the  right  of  lien.  If  it  be  the  intention  to  create 
such  right,  it  must  be  by  express  provision,  that  the  ship- 
owners shall  have  a  right  to  detain  the  goods  which  shall  be 
brought  home,  until  all  their  demands  under  the  covenants 
are  satisfied  ;  inasmuch  as  a  lien  may  be  extended,  or  wholly 
excluded  by  particular  contract.1 

§  384.  Lien  attaches  whether  payment  of  freight  is  to 
precede  or  be  concomitant  with  delivery  of  the  cargo.  By 
stipulations  in  bills  of  lading,  that  the  goods  shall  be  deliv- 
ered to  the  consignees,  they  paying  the  freight,  the  delivery 
of  the  cargo  and  the  payment  of  freight  are  concomitant 
acts,  which  neither  party  is  obliged  to  perform,  without  the 
other  being  ready  to  perform  the  correlative  act.  Where  the 
owner  of  ihe  vessel  covenanted  to  deliver  the  cargo  agree- 
ably to  bills  of  lading,  and  the  freighters  covenanted  to  pay 
one  third  of  the  freight  in  cash  on  arrived,  and  the  remainder 


1  In  the  case  of  Birley  v.  Gladstone  an  entire  ship  was  chartered  for  a 
voyage  out  and  home,  and  by  the  terms  of  the  charter-party,  the  merchant 
covenanted  to  pay  for  the  homeward  cargo  at  certain  rates  per  ton,  on 
delivery  of  the  cargo  at  Liverpool,  by  bills  at  three  months  ;  to  load  a  full 
cargo  and  to  pay  demurrage,  and  he  bound  the  goods  to  the  performance 
of  his  covenants.  The  Court  of  King's  Bench  decided,  that  the  owner 
could  not  detain  the  goods,  either  for  the  freight  of  such  as  were  put  on 
board  but  afterwards  relanded  by  compulsion,  or  for  dead  freight,  or  for 
demurrage.  A  bill  was  afterwards  filed  in  Chancery  for  the  purpose  of 
obtaining  a  declaration,  that  the  ship-owners  were  entitled  to  a  lien  in 
equity  ;  but  the  Master  of  the  Rolls,  Sir  William  Grant,  dismissed  the 
bill ;  and  in  the  course  of  his  judgment,  he  said  :  "  There  can  be  but  one 
right  construction  of  the  clause,  and  if  it  could  be  said  that  the  Court  of 
King's  Bench  had  ill  construed  it,  this  is  not  a  Court  of  appeal  in  which 
their  decision  can  be  corrected.  It  was  asked,  what  effect  the  clause 
could  have,  if  it  gave  no  lien  either  in  law  or  equity  ?  A  Court  of  Equity 
is  not  bound  to  find  an  equitable  effect  for  a  clause,  merely  because  the 
construction  which  a  Court  of  law  has  put  upon  it,  would  leave  it  inopera- 
tive. In  truth,  it  has  been  copied  from  foreign  charter-parties,  with  very 
little  consideration  wilh  the  effect  that  might  be  allowed  to  it  in  the  law  of 
this  country."  Birley  v.  Gladstone,  3  M.  &  Sel.  R.  205,  and  2  Mer.  Ch. 
R.  401.  And  see  Cross  on  Lien,  &c.  307,  and  Abbott  on  Shipp.  286. 
32 


374  LAW   OF   CARRIERS.  [CH.  IX. 

on  delivery  of  the  cargo,  by  good  bills  of  exchange,  at  four 
months  date  ;  and  the  captain  landed  the  goods  in  his  own 
name,  and  offered  them  the  freighter  at  one  delivery,  on 
receiving  the  stipulated  freight  ;  it  was  held,  that  the  owner 
had  a  lien  on  them  until  such  bills  were  produced  by  the 
freighter.1 

§  385.  Notwithstanding,  therefore,  the  opinion  which  seems 
to  have  been  formerly  entertained,2  that  wherever  there  was 
a  special  contract  between  the  parties,  no  lien  could  exist,  the 
doctrine  does  not  now  prevail.3  It  was  examined  with  great 
care  by  the  Court  (as  it  involved  the  consideration  of  several 
ancient  authorities)  in  the  case  of  Chase  v.  Westmore,4  and 
in  the  judgment  delivered,  after  advisement,  by  Lord  Ellen- 
borough,  was  repudiated,  and  expressly  declared  to  be  con- 
trary to  reason  and  the  established  principles  of  law.  In 
Pinney  v.  Wells,  in  Connecticut,5  the  Court  declare,  that  the 
rule  may  now  be  considered  as  settled,  that  a  lien  may  exist, 
although  there  is  a  special  contract. 

§  386.  The  existence,  therefore,  of  a  special  contract  be- 
tween a  common  carrier  and  his  employer,  regarding  the 
services  to  be  performed,  and  the  compensation  to  be  paid, 
does  not  deprive  the  former  of  his  lien,  unless  there  is  some- 
thing in  that  contract  inconsistent  with  such  lien.  In  other 
words,  no  claim  to  the  possession  of  goods  can  be  set  up 

1  Yates  v.  Mennell,  2  Moore,  R.  297  ;  and  see  Tate  v.  Meek,  Ib.  278  ; 
Yates  v.  Railton,  8  Taunt.  R.  293  ;  and  Abbott  on  Shipp.  293,  294. 

2  See  opinion  of  Williams,  J.,  in  Pinney  v.  Wells,  10  Conn.  R.  104, 
and  opinion  of  Lord  Ellenborough  in  Chase  v.  Westmore,  5  M.  &  Selw. 
R.  180. 

3  Ibid.,  and  note  to  Metcalf's  Edit,  of  Yelv.  R.  67  a. 

4  Chase  v.  Westmore,  ub.  sup. 

5  Pinney  ».  Wells,  ub.  sup.     By  the  old  authorities,  says  Kent,  no  lie 
existed  in  cases  of  special  contract  for  the  price,  but  those  authorities  have 
been  overruled  as  contrary  to  reason  and  the  principles  of  law  ;  and  it  is 
now  settled,  that  it  exists  equally,  whether  there  be,  or  be  not,  an  agree- 
ment for  the  price.    2  Kent,  Comm.  634. 


CH.  IX.]  EIGHT  OF  LIEN. 

which  conflicts  with  the  terms  of  the  contract.  Credit 
given,  by  the  contract,  to  the  employer  for  the  price  of 
transportation,  beyond  the  time  when  the  goods  transported 
are  to  be  delivered  and  placed  out  of  the  carrier's  control, 
is  inconsistent  with  a  lien.1  Lord  Ellenborough  declared  a 
lien  to  be  wholly  inconsistent  with  a  dealing  on  credit,  and 
maintained,  that  it  could  only  subsist  where  payment  is  to 
be  made  in  ready  money,  or  there  is  a  bargain  that  security 
shall  be  given  the  moment  the  work  is  completed.2 

§  387.  In  Chandler  v.  Belden,  in  New  York,3  the  defend- 
ant agreed  to  transport  salt  from  Turks  Island  to  New  York, 
and  by  the  terms  of  the  contract  five  hundred  dollars  were 
to  be  paid  in  advance,  and  the  balance  in  three  equal  pay- 
ments at  thirty,  sixty,  and  ninety  days  after  its  arrival  in 
New  York.  The  five  hundred  dollars  having  been  paid,  the 
defendant  claimed  a  lien  for  the  balance  of  the  freight.  But 
the  Court  denied  that  a  lien  existed,  and  held,  that  it  could 
not  be  enforced,  where  the  parties  had  expressly  regulated 
the  time  and  manner  of  paying  freight,  by  stipulation  in  a 
charter-party ;  especially,  if  the  cargo  is  to  be  delivered 
before  the  period  of  payment  arrives ;  Spencer,  J.,  saying, 
that  such  an  agreement  was  an  express  renunciation  of  the 
right  to  insist  on  freight  before  the  cargo  was  delivered. 

§  388.  In  Pinney  v.  Wells,  before  referred  to/  A.,  a  man- 


i  Ibid. 

a  Raitt  v.  Mitchell,  4  Campb.  R.  149.  Where  a  solicitor  took  the 
notes  of  an  executor  of  his  employer,  payable  in  three  years,  it  was  held, 
that,  by  necessary  implication,  he  agreed  to  give  up  the  papers  and  rely 
upon  the  security  ;  and  the  Lord  Chancellor  said,  that  if  a  lien  commenced 
under  an  implied  contract,  and  afterwards  a  special  contract  was  made  for 
payment,  in  the  nature  of  the  thing  one  contract  destroys  the  other. 
Cowell  r.  Simpson,  16  Ves.  R.  275.  The  same  principle  is  recognized 
in  Crawshay  v.  Homfray,  4  B.  &  Aid.  R.  50. 

3  Chandler  v.  Belden,  18  Johns.  (N.  Y.)  R.  157. 

<  Pinney  v.  Wells,  10  Conn.  R.  104. 


376 


LAW   OF   CARRIERS. 


[CH.  IX. 


ufacturer,  and  B.,  a  common  carrier,  entered  into  a  contract, 
in  May,  1833,  wherein  it  was  stipulated,  that  B.  should 
transport  1500  tons  of  coal  belonging  to  A.  from  Philadel- 
phia, and  deliver  it  at  Collinsville,  in  Connecticut ;  that  A. 
should  pay  B.  for  this  transportation  $4  and  37|  cents  per 
ton  ;  that  A.  should  have  the  privilege  of  giving  his  notes 
payable  at  the  Hartford  Bank,  instead  of  paying  the  cash ; 
that  all  the  notes  so  given  previous  to  the  1st  of  August, 
1833,  to  be  payable  in  four  months,  and  all  given  after  that 
time,  to  be  payable  in  three  months  from  the  dates  thereof. 
Whereupon  B.  immediately  commenced  the  transportation  of 
the  coal  under  the  contract,  and  before  the  10th  of  September, 
1833,  had  transported  from  Philadelphia  to  New  Haven  1276 
tons,  of  which  he  had  transported  753  tons  from  New  Haven 
to  Avon,  and  623  tons  from  Avon  to  Collinsville,  when  A. 
failed,  and  made  a  general  assignment  of  his  property,  in- 
cluding the  coal  at  New  Haven  and  Avon,  in  a  course  of 
transportation,  in  the  possession  of  B.  ;  A.  at  different  times, 
between  the  28th  of  June,  1833,  gave  B.  his  notes  pursuant 
to  the  contract,  to  the  amount  of  $3,450,  which  were  out- 
standing at  the  time  of  A.'s  failure,  and  remained  unpaid. 
It  was  held,  that  this  was  substantially  a  contract  upon 
which  B.  gave  A.  credit,  and  thereby  B.  waived  the  benefit 
of  a  lien  on  the  coal  in  his  possession,  either  for  the  trans- 
portation of  the  whole,  or  the  parcels  not  delivered.  It 
seemed  to  Williams,  J.,  (in  whose  opinion  all  the  Judges 
present  concurred)  apparent,  under  the  circumstances  of  the 
case,  that  the  contract  in  question  was  utterly  inconsistent 
with  a  lien  in  the  carrier ;  and  he  remarked,  that  "  if  by  the 
contract  originally  made,  they  (the  carriers)  waived  any 
claim  for  freight,  and  instead  of  leaving  their  payment  to 
the  implication  of  law,  they  contracted  to  give  a  credit  for 
the  freight,  then  whether  they  had  parted  with  the  possession 
or  retained  it,  they  must  look  only  to  the  contract  they  had 
entered  into,  for  their  security." 


§  389.  It  may  distinctly  appear,  by  the  terms  of  a  charter- 


CH.  IX.]  RIGHT   OP  ACTION   FOB  FREIGHT.  377 

party,  that  the  owner  of  the  ship  has  been  content  to  trust  to 
the  personal  responsibility  of  the  merchant,  and  by  fixing  a 
specific  time  of  payment,  before  or  after  delivery,  to  waive 
his  right  of  lien.1 

§  390.  The  principle  above  considered  has  likewise  been 
extended  to  cases  where  there  was  no  express  agreement  to 
give  credit,  but  where,  by  the  usage  of  trade,  a  credit  might 
be  claimed  ;  as  where  a  ship  was  taken  to  a  dock  to  repair, 
and  great  expenses  were  incurred  by  the  shipwright ;  it 
being  proved,  that,  by  usage,  the  owner  of  the  ship  might 
demand  a  credit,  it  was  held  there  was  no  lien.2  And 
again,  where  goods  were  landed  upon  a  wharf  in  October, 
and  by  usage,  wharfage  was  not  payable  until  Christmas,  it 
was  held  there  could  be  no  lien.3 

§  391.  Secondly,  as  to  the  right  of  the  carrier  to  the  re- 
covery of  his  hire  after  the  possession  of  the  goods  has  been 
relinquished.  He  is  compelled,  in  such  event,  to  resort  to 
an  action  at  law  to  recover  compensation  for  his  service  ; 
and  the  compensation,  when  thus  claimed  by  a  carrier  by 
water,  has  obtained  the  appellation  of  FREIGHT.4  This  term, 
in  its  most  extensive  sense,  is  applied  to  all  rewards  or  com- 
pensation paid  for  the  use  of  ships,  including  the  transporta- 
tion of  passengers  ;  6  but,  in  the  common  acceptation  of  the 
term,  it  means  the  price  for  the  actual  transportation  of  goods 
by  sea  from  one  place  to  another.6  Foreign  writers  consider 


1  Lucas  v.  Nockells,  4  Bing.  R.  729. 

2  Rain  v.  Mitchell,  4  Campb.  R.  146. 

3  Crawshay  v.  Homfray,  4  B.  &  Aid.  R.  50. 

4  Beawes,  Lex  Merc.  118;  Abbott  on  Shipp.  405;  3  Kent,  Comm. 
219.     Freight,  in  the  general  legal  sense  of  the  term,  means  all  rewards, 
hire,  or  compensation,  paid  for  the  use  of  ships.      Pothier,  Traite  de 
Charter-partie,  n.  1.     See  note  1  to  Abbott,  supra. 

5  Giles  v.  The  Cynthia,  1  Peters,  (Adm.)  R.  206. 

6  3  Kent,  Comm.  218,  and  Pothier,  supra. 

32* 


378  LAW    OF    CARRIERS.  [CH.  IX. 

passage  money  the  same  as  freight ;  and  as  Lord  Ellenbo- 
rough  has  affirmed,  except  for  the  purposes  of  lien,  it  seems 
the  same  thing.1 

§  392.  The  amount  of  freight  is  most  usually  fixed  by 
agreement  between  the  parties  ;  but  when  there  is  no  agree- 
ment for  the  price  of  conveyance,  the  carrier  may  recover 
his  reward  on  a  quantum  meruit ; 2  the  amount  to  be  ascer- 


1  Mulloy  v.  Backer,  5  East,  R.  321.     Upon  this  resemblance  the  fol- 
lowing case  arose:  —  The  plaintiff  agreed  to  convey  the  defendant,  his 
family  and  luggage  from  Demarara  to  Flushing.     In  the  course  of  the 
voyage,  his  vessel  was  taken  by  an  English  brig  and  brought  into  Ply- 
mouth.   The  defendant  and  his  family  were  set  at  liberty,  and  their  luggage 
restored.     And  the  action  was  brought  to  recover  the  passage  money  for 
so  much  of  the  journey  as  was  performed  at  the  time  of  the  interruption  ; 
upon  ihe  principle,  that  the  defendant  had  accepted  his  own  liberation,  and 
his  luggage,  at  Plymouth,  and  did  not  require  the  plaintiff  to  carry  him  on 
to  the  end  of  his  journey,  which,  it  was  contended,  was  a  sufficient  founda- 
tion for  a  promise  to  be  implied.     The  vessel  and  cargo  had  been  libelled 
in  the  Court  of  Admiralty  for  condemnation,  but  no  decision  as  to  the 
vessel,  which  was  claimed  by  a  British  subject  as  his  property,  hfld  taken 
place  at  the  commencement  of  the  suit.     Upon  which  fact,  the  case  was 
ultimately  decided.     The  action  which  presumed  the  freight  pro  rala  to  be 
in  the  plaintiff,  was  held  to  have  been  prematurely  brought,  "pending  the 
discussion  of  these  rights  in  a  Court  which  has  not  only  competent,  but 
exclusive,  jurisdiction  over  the  question  of  prize,  and  which  has  power  to 
deal  with  the  freight  as  it  thinks  proper.     Pending  the  suit  in  the  Admi- 
ralty, no  person  had  a  right  to  restore  the  passenger's  luggage,  which  in 
strictness  was  as  much  subject  to  the  question  of  prize  as  the  ship  and 
cargo  ;  and  the  mere  restoration  of  it,  de  facto,  by  an  unauthorized  hand, 
cannot  affect  the  right  of  the  captors  pending  the  suit."    Mulloy  v.  Backer, 
ub.  sup.     In  this  case,  the  action  was  brought  pending  the  proceedings  in 
the  Court  of  Admiralty,  and  upon  that  ground,  was  decided  against  the 
master,  because  possibly  the  Court  of  Admiralty  might  order  the  defend- 
ant to  pay  to  the  captors.     That  passage  money  and  freight  are  governed 
by  the  same  rules  as  between  the  passenger  or  freighter,  and  the  ship- 
owner and  master,  see  Moffatw.  East  India  Co.  10  East,  R.  468  ;  Watson 
v.  Duykinck,  3  Johns.  R.  335  ;  Rowland  v.  The  Lavinia,  1  Peters,  (Adm.) 
R.  126  ;  Griggs  v.  Austin,  3  Pick.  (Mass.)  R.  20. 

2  Bastard  v.  Bastard,  2  Show.  R.  81 ;  and  see  on  this  subject  more  fully, 
ante,  §  124. 


CH.  IX.]  RIGHT  OF   ACTION  FOR  FREIGHT.  379 

tained  by  the  usage  of  trade,  and  the  circumstances  and 
reason  of  the  case.1  But,  in  respect  to  the  usage,  when 
relied  on,  and  sought  to  be  established,  it  must  be  shown  to 
be  a  generally  recognized  usage,  and  must  not  merely  exist 
in  the  judgment  and  opinion  of  witnesses.2  In  a  case  where 
two  witnesses  stated,  that  the  usual  practice  of  the  trade  to 
Sydney,  was  to  consider  steerage  passengers  as  "  cargo," 
and  their  passage  money  as  "  freight  ;  "  but  could  give  no 
instances  of  such  construction,  within  their  own  knowledge; 
it  was  held,  that  the  evidence  was  insufficient  to  establish  an 
usage  of  trade,  so  as  to  vary  the  prima  facie  meaning  of  the 
words  "  cargo  "  and  "  freight "  in  a  written  contract.3 

§  393.  Of  course,  to  entitle  a  common  carrier  to  recover 
for  freight,  it  must  appear  that  the  property  was  not  trans- 
ported against  the  express  orders  of  the  owner ;  nor  will  a 
receipt  of  the  property  by  the  owner  alter  the  case.4  If 
there  be  an  earnest  given,  and  a  verbal  agreement  only  for 
freight,  and  the  same  be  broken  off' by  the  merchant,  accord- 
ing to  the  Rhodian  Law  he  loses  his  earnest;  but  if  the 
owners  or  master  repent,  they  forfeit  double.5  But  by  the 
Common  Law,  the  party  damnified  may  bring  his  action 
on  the  case  and  recover  all  damages  on  the  agreement.  A. 
contracted  with  B.  for  the  carriage  of  100  quarters  of  barley 
and  promised  to  deliver  unto  him  the  said  100  quarters  at 
Barton  Haven,  to  carry  them  for  him,  and  for  the  carriage 
thereof  did  promise  to  pay  him  so  much  ;  and  B.  promised 
to  carry  the  same  for  him,  and  accordingly  brought  his  ship 
to  the  said  haven,  expecting  there  the  delivery  of  the  100 

1  3  Kent,  Comm.  219.     If  goods  be  sent  on  board  a  vessel  generally, 
the  freight  must  be  according  to  that  commonly  paid  for  the  like  accus- 
tomed voyages.     Beawes,  Lex  Merc.  1UO. 

2  Ante,  $  358. 

3  Lewis  v.  Marshall,  13  Law  Journ.  (N.  S.)  cited  in  Addis,  on  Contr. 
166. 

4  Schureman  v.  Withers,  Anthon,  (N.  Y.)  N.  P.  C.  166. 

5  Beawes,  Lex  Merc.  190,  cited  in  Jones  on  Carr.  138. 


380  LAW   OF   CARRIERS.  [CH.  IX. 

quarters  of  barley ;  but  A.  came  not  to  deliver  the  same  to 
him.  Whereupon  B.  brought  his  action  of  assumpsit  lor  the 
freight,  and  upon  the  general  issue  pleaded,  had  a  verdict 
and  judgment,  which  was  affirmed  upon  a  writ  of  error.1 
If  goods  are  put  on  board  a  vessel  in  pursuance  of  an  agree- 
ment to  execute  a  charter-party,  and  while  on  board  they 
are  sold,  and  the  purchaser  refuses  to  pay  the  freight,  the 
proper  remedy  by  the  owner  of  the  vessel  for  the  injury 
sustained  by  him,  in  consequence  of  the  violation  of  the 
contract,  is  by  an  action.  No  freight  being  due  on  the  cargo 
before  the  commencement  of  the  voyage,  there  exists  no 
right  of  lien.2 

§  394.  With  respect  to  living  animals,  whether  men  or 
cattle,  which  may  die  during  the  voyage,  without  any  fault 
or  neglect  of  the  persons  on  board  the  ship,  if  there  be  no 
express  agreement  whether  the  freight  is  to  be  paid  for  the 
lading  or  for  the  transporting  of  them,  freight  is  to  be  paid 
as  well  for  the  dead  as  the  living.  If  the  agreement  be  to 
pay  freight  for  the  lading  them,  their  death  cannot  deprive 
the  owners  of  the  freight.  If  the  agreement  be  to  pay 
freight  for  transporting  them,  then  no  freight  is  due  for 
those  that  die  on  the  voyage,  because,  as  to  them,  the  con- 
tract is  not  performed.  These  distinctions  are  found  in  the 
Civil  Law,  and  are  adopted  by  all  the  writers  on  this  sub- 
ject.3 They  have  been  laid  down  by  Beawes,  as  being 
acknowledged  positions  in  maritime  law,4  of  which  Lord 
Mansfield  has  said,5  that  it  is  the  general  law  of  nations, 
Non  erit  alia  lex  Romce,  alia  Athenis  ;  alia  nunc,  alia  post 

1  Atkinson  v.  Buckle,  3  Bulstr.  R.  152,  and  cited  in  Jones  on  Carr. 
139. 

2  Burgess  v.  Gun,  3  Harr.  &  Johns.  (Md.)  R.  225. 

3  Abbott  on  Shipp.  409,  410,  who  cites  Dig.   14,  2,  10  ;  Roccus,  not. 
76,  77,  78  ;  Molloy,  B.  2,  ch.  4.     And  so  laid  down  in  3  Kent,  Comm. 
225,  226. 

4  Beawes,  Lex  Merc. 

5  2  Burr.  R.  887. 


CH.  IX.]  EIGHT   OF  ACTION   FOB,  FREIGHT.  381 

hac  •  sed  apud  omnes  gentes,  et  omni  tempore  una  eademque 
lex  obtinebit.1 

§  395.  Freight  may  be  due  in  respect  of  charter-parly, 
These  instruments,  as  has  already  been  shown,  (although 
they  sometimes  contain  an  actual  demise  of  the  ship  from 
the  owners  to  the  freighters,)  are  often  so  framed,  that  the 
legal  possession  of  the  ship  shall  remain  in  the  owner,  and 
a  mere  right  of  lading  the  vessel  shall  be  acquired  by  the 
freighter.  A  charter-party  of  this  kind  differs  from  a  bill  of 
lading,  only  in  extending  to  all  the  goods  on  board  ;  and  a 
ship  so  chartered  only  in  this,  that  the  owner  contracts  to 
carry  only  for  one  person,  instead  of  several;  and  in  such 
case  the  owner  is  to  be  considered  as  the  carrier  of  the 
goods,  and  is  subject  to  the  liabilities  attaching  on  persons 
using  that  trade.2 

1  And  see  also  Jones  on  Carr.  139.  Live  animals  and  the  freight  of 
them  are  not  protected  by  a  policy  of  insurance  in  general  terms  upon 
"cargo"  and  "freight,"  but  are  the  subjects  of  a  particular  insurance. 
Wolcoit  v.  Eagle  Insurance  Company,  4  Pick.  (Mass.)  R.  429.  It  should 
seem  reasonable,  that  parties,  in  insurance  upon  living  animals,  should 
make  a  particular  agreement  as  to  the  extent  of  the  risk  to  be  borne. 
For  it  is  not  to  be  supposed,  that  the  premium  for  insuring  a  cargo  of  race- 
horses, elephants,  or  or  other  valuable  animals,  would  not  be  greater  than 
for  insuring  bales  of  goo3s.  In  the  former  case,  the  animals  would  be 
exposed  not  only  to  natural  death,  but  to  destruction  by  the  breaking  of 
their  limbs  from  the  rolling  of  the  ship  ;  which  would  not  occasion  the 
least  injury  to  the  bales  of  merchandise.  And  the  freight  upon  animals  is 
estimated,  sometimes  upon  the  number  laden  on  board,  and  sometimes  upon 
the  number  delivered  alive,  but  not  upon  such  as  die  upon  the  passage  ; 
unless  there  should  be  a  particular  agreement.  Per  Putnam,  J.,  in  deliv- 
ering the  opinion  of  the  Court  in  Wolcoit,  &c.  supra.  In  an  action  on  a 
charter-party,  JC14  was  to  be  paid  in  England  for  each  passenger  ordered 
on  board  the  ship,  and  not  for  each  passenger  who  should  be  brought  to 
England  ;  and  it  was  meant  to  be  a  compensation  for  providing  diet  and 
accommodation  for  the  passengers,  which  expense  would,  at  all  events,  be 
incurred  whether  the  ship  arrived  or  was  lost.  Per  Le  Blanc,  J.,  in  Moffat 
».  East  India  Company,  10  East,  R.  468. 

a  Jones  on  Carr.  120  ;  4  Com  Dig.  231,  and  tit.  Merchant,  E.  8 ;  2  B. 
&  Aid.  R.  507  ;  2  B.  &  Bing.  R.  427  ;  Beawes,  Lex  Merc.,  and  see  ante, 
§  88,  89. 


382  LAW   OF   CARRIERS.  [CH.  IX. 

§  396.  The  right  of  recovery  of  freight,  according  to  the 
contract  for  that  purpose  in  the  charter-party,  of  course 
depends  upon  the  terms  in  which  the  contract  is  expressed. 
These  are  so  numerous  and  so  varied  in  proportion  to  the 
different  degrees  of  confidence  mutually  reposed  in  each 
other  by  the  parties  thereto,  that  the  many  decisions  which 
are  to  be  found  in  the  books  arising  upon  contracts  for 
freight,  constitute  a  large  portion  of  the  law  of  shipping.1 
To  point  them  all  out  would  far  extend  the  limits,  and 
exceed  the  design,  of  the  present  work.  The  general  rule 
which  Courts  have  adopted  with  regard  to  the  construction 
of  charter-parties,  as  well  as  other  mercantile  instruments,  is, 
that  the  construction  should  be  liberal,  agreeable  to  the  real  in- 
tention of  the  parties,  and  conformable  to  the  usage  of  trade  in 
general,  and  the  particular  trade  to  which  the  contract  relates.2 

§  397.  It  is  often  provided  in  charter-parties,  that  the 
goods  shall  be  delivered  agreeably  to  bills  of  lading  to  be 
signed  by  the  master  ;  and  the  master,  upon  receiving  the 
goods,  signs  bills  of  lading  for  delivery  on  payment  of 
freight,  or  with  words  of  similar  import,  giving  him  a  right 
to  refuse  to  make  delivery  to  the  person  designated  by  the 
bill  of  lading,  without  payment  of  freight.  And,  as  it  has 
sometimes  happened,  that  the  master  has  not  insisted  upon 
the  exercise  of  this  right,  it  has  been  much  questioned 
whether  the  merchant-charterer  was  answerable  for  the 
freight ;  and  it  has  been  decided  that  he  is  answerable.8 

1  See  Abbott  on  Shipp.  Part  4,  ch.  1,  entitled  "  Contract  of  Affreight- 
ment by  Charter-party;"   Ibid.  Part  4,  ch.  9,  entitled  "Of  Payment  of 
Freight;"  3  Kent,  Comm.  Lect.  47.     A  person  who  charters  a  vessel  does 
not  become  owner  for  the  trip,  when,  by  the  terms  of  the  charter-party  he 
pays  a  gross  sum,  —  the  general  owner  furnishing  the  master  and  crew, 
and  defraying  the  expenses  of  the  vessel.     Schooner  Argyle  v.  Worthing- 
ton,  17  Ohio  R.  460. 

2  Abbott  on  Shipp.  250. 

3  Abbott  on  Ship.  414,  et  seq- ;  and  see  3  Kent,  Comm.  222  ;  Spencer 
v.  White,  1  Ired.  (N.  C.)  R.  226;  Laying  v.  Stewart,  1  Watts  &  S. 
(Penn.)  R.  222;  Barker  v.  Havens,  17  Johns.  (N.  Y.)  R.  234. 


CH.  IX.]  BIGHT   OF  ACTION  FOR  FREIGHT. 

A.,  a  common  carrier,  received  goods  at  Philadelphia  for  C. 
&  T.  at  Lexington,  and  receipted  for  the  same,  to  be  deliv- 
ered to  H.  &  L.  of  Pittsburgh,  "  on  presenting  this  receipt 
and  payment  of  freight."  The  goods  were  delivered,  but 
the  freight  was  not  paid,  and  H.  &  L.  received  the  amount 
of  the  freight  from  C.  &  T.,  and  afterwards  failed.  It  was 
held,  that  A.  was  entitled  to  recover  the  amount  of  the 
freight  from  C.  &  T.1  The  Court  in  this  case  considered 
the  point  before  them  had  long  been  settled.  It  was  fully 
discussed  in  Shepard  v.  De  Bernales,2  and  ruled,  upon  the 
authority  of  Penrose  v.  Wilkes,3  Tapley  v.  Martin,4  and 
Christy  v.  Howe,5  that  the  stipulation  in  a  bill  of  lading,  for 
delivery  on  payment  of  freight,  is  introduced  for  the  benefit 
of  the  consignor,  or  the  party  for  whom  the  consignee  is 
agent.  If  the  agent  should  be  faithless,  the  loss  would  fall 
on  those  who  trusted  him,  and  they  ought  to  bear  it,  and 
this  is  a  point  conclusively  established.6 

§  398.  A  bill  of  lading"  is  called  by  Lord  Loughborough 7 
the  written  evidence  of  a  contract  for  the  carriage  and  deliv- 
ery of  goods  sent  by  sea,  for  a  certain  freight.  Its  peculiarity 
is,  that  unless  freight  is  wholly  earned,  by  a  strict  performance 
of  the  voyage,  no  freight  is  due  or  recoverable.  The  con- 
tract of  the  ship-carrier  is  indivisible,  and  he  can  recover  for 
no  portion  of  the  voyage  that  has  been  made,  until  the  whole 
is  finished,  and  the  goods  have  reached  their  destination  ; 
unless  the  consignees,  by  a  new  contract,  accept  them  short 
of  the  place  of  destination.  The  contract  for  the  convey- 
ance of  merchandise,  by  a  bill  of  lading,  is,  says  Lord  Ten- 
terden,  "  an  entire  contract,  and  unless  it  be  completely 

1  Collins  et  al.  v.  Union  Trans.  Co.,  10  Watts,  (Perm.)  R.  384. 
3  Shepard  ».  De  Bernales,  13  East,  R.  567. 

3  Penrose  v.  Wilkes,  Abbott  on  Shipp.  415. 

4  Tapley  v.  Martin,  8  T.  R.  445. 

5  Christy  v.  Rowe,  1  Taunt.  R.  300. 

6  Collins  et  pi.,  ub.  sup. 

7  1  H.  Bl.  R.  350,  and  see  ante,  §  223. 


384  LAW   OF  CARKIEBS.  [CH.  IX. 

performed,  by  the  delivery  of  the  goods  at  the  place  of  des- 
tination, the  merchant  will  in  general  derive  no  benefit  from 
the  time  and  labor  expended  in  a  partial  conveyance,  and 
consequently  be  subject  to  no  payment  whatever ;  although 
the  ship  may  have  been  hired  by  the  month  or  week." l 
The  doctrine  has  never  been  controverted,  and  is  ex- 
pressly asserted  by  Mr.  Justice  Story  in  the  case  of  the 
ship  Hooper.2 

§  399.  As  freight  is  the  payment  made  for  the  conveyance 
of  merchandise  to  its  destination,  it  denotes  the  price  of 
carriage  and  not  of  receiving  goods  to  be  carried;  and 
hence,  though  a  merchant  may  contract  to  pay  a  sum  of 
money  to  a  ship-owner  for  taking  goods  on  board,  yet  such 
payment  is  not,  strictly  speaking,  freight.  It  is  thus,  that  no 
freight  becomes  due  until  the  voyage  is  completely  performed  ; 
and  in  consequence  of  this  rule,  when  a  ship  has  been  en- 
gaged to  sail  from  one  port  to  another,  as  from  A.  to  B.  and 
back  again,  it  may  become  important  to  know  whether  this 
employment  is  to  be  looked  upon  as  consisting  of  one  or 
two  distinct  voyages.  The  question  is  one,  in  the  solving 
of  which  Courts  are  guided  by  the  intention  of  the  parties 
as  collected  from  the  words  and  subject-matter  of  their 
agreement.3 

1  Abbott  on  Shipp.  491.     The  same  doctrine  is  laid  down  by  Holt,  Law 
of  Shipp.  134  ;  3  Kent,  Comm.  219. 

2  The  Ship  Nathaniel  Hooper,  3  Suran.  (Cir.  Co.)  R.  542.     And  see 
also  Jordan  v.  Warren  Insurance  Company,  1  Slory,  (Cir.  Co.)  R.  352; 
Saltus  v.  Ocean  Insurance  Company,  14  Johns.  (N.  Y.)  R.  138;  Gris- 
wold  ».  New  York  Insurance  Company,  3  Ib.  321 ;   Gaze  v.  Baltimore 
Insurance  Company,  7  Cranch,  (U.  S.)  358. 

3  Smith,  Merc.  Law,  299;  Blakely  v.  Dickson,  2  B.  &  Pull.  R.  321 ; 
Andrew  v.  Moorehouse,  5  Taunt.  R.  435;  Mashiter  v.  Bullar,  1  Campb. 
R.  84  ;  Crozier  v.  Smith,  1  M.  &  Gran.  R.  407  ;  Abbott  on  Shipp.  P.  3, 
ch.  7,  s.  17;  Brown  v.  Hunt,  11  Mass.  R.  45;  Lock  v.  Swan,  13  Mass. 
R.  76  ;  Coffin  v.  Storer,  5  Mass.  R.  252  ;    Banker  v.  Cheviot,  2  Johns. 
(N.  Y.)  R.  332  ;  Penoyer  v.  Hallet,  15  Johns.  (N.  Y.^  R.  332;  Blan- 
chard  u.  Buckman,  3  Greenl.  (Me.)  R.  1. 


CH.  IX.]  RIGHT   OF  ACTION  FOR  FREIGHT.  385 

§  400.  To  perfect  the  right  to  freight  it  is  not  only  neces- 
sary, that  the  goods  arrive  at  the  place  of  destination,  but 
there  must  be  a  delivery  of  them.1  But  although  no  action 
will  lie  for  the  amount  of  freight  until  delivery,  the  master 
(as  has  appeared)  may  retain  the  goods  until  the  freight  is 
paid.  In  all  cases,  however,  where  a  delivery  is  prevented 
by  the  neglect  or  default  of  the  owner  of  the  goods,  the 
freight  becomes  payable  ;  2  and  it  has  been  decided  in  Penn- 
sylvania, that  if  the  goods  are  tendered  to  the  consignee, 
but  the  landing  of  them  is  prevented  by  the  refusal  of  the 
government  to  allow  it  to  be  done,  the  whole  freight  is 
earned.3 

§  401.  If  the  ship  be  captured,  the  owners  of  it,  of  course, 
lose  their  freight,  as  well  as  the  merchant  his  goods.  But 
in  case  of  re-capture  and  subsequent  performance  of  the 
voyage  at  the  place  of  destination,  the  right  to  freight  re- 
vives, and  becomes  due  on  the  completion  of  the  voyage.4 
The  same  rule  extends  to  a  resumption  of  an  interrupted 
voyage  after  the  removal  of  an  embargo  by  which  it  was  so 
suspended.6 

§  402.  If  the  vessel,  having  performed  part  of  her  voyage, 
be  disabled  from  completing  the  remainder,  then  transship- 
ment to  the  place  of  destination  is  in  furtherance  of  the 


1  Lane  v.  Penniman,  4  Mass.  R.  91 ;  Certain  Logs  of  Mahogany,  2 
Sumn.  (Cir.  Co.)  R.  589. 

a  Bradstreet  v.  Baldwin,  11  Mass.  R.  229;  Palmer  v.  Lorillard,  16 
Johns.  (N.  Y.)  R.  346,  cited  in  note  to  Abbott  on  Shipp.  (5th  Am.  edit.) 
406. 

3  Morgan  v.  North  American  Insurance  Company,  4  Dallas,  (Penn.)  R. 
455. 

4  Beale  v.  Thompson,  3  Bos.  &  Pull.  R.  420,  431 ;  The  Race  Horse, 
3  Rob.  R.  101. 

5  Ibid,  and  Curling  v.  Long,  1  Bos.  &  Pull.  R.  637 ;  and  2  Holt  on 
Shipp.  135. 

33 


386  LAW    OF   CARRIERS.  [CH.  IX. 

original  purpose.1  In  case  of  such  transshipment,  it  was  at 
one  time  a  question,  whether  the  remainder  of  the  voyage, 
after  the  transshipment,  was  to  be  considered  as  performed 
under  the  old  contract  or  under  a  new  one,  and  whether  the 
remuneration  was  to  be  at  the  rate  of  freight  originally  con- 
tracted for,  or  on  a  quantum  meruit.  It  is  said,  however,2  to 
be  well  settled  in  England,  that  if  the  goods  be  conveyed 
safely  to  the  place  of  destination,  the  freight  shall  be  that 
originally  contracted  for.  This  was  so  decided  in  Shipton 
v.  Thornton,3  in  which  the  Court  say  :  "  It  may  be  taken  to 
be  either  the  duty  or  the  right  of  the  owner  to  transship.  If 
it  be  the  former,  it  must  be  so  in  virtue  of  his  original  con- 
tract ;  and  it  should  seem  to  result  from  a  performance  by 
him  of  that  contract,  that  he  will  be  entitled  to  the  full  con- 
sideration for  which  it  was  entered  into,  without  respect  to 
the  particular  circumstances  attending  the  fulfilment.  If  it 
be  the  latter,  a  right  to  the  full  freight  seems  to  be  implied. 
The  master  is  at  liberty  to  transship,  but  for  what  purpose, 
except  for  that  of  earning  his  full  freight  at  the  rate  agreed 
on?" 

§  403.  In  the  above  case  of  Shipton  v.  Thornton,  the 
question  was  incidentally  mooted  :  —  If  the  transshipment  can 
only  be  effected  at  a  higher  than  the  original  rate  of  freight, 
which  party  is  to  stand  to  the  loss  ?  The  opinion  of  the  Court 
appeared  to  be,  that,  in  such  case,  the  master's  right  to  trans- 
ship would  be  at  an  end,  but  that  he  would  become  the 
freighter's  agent  to  do  what  was  most  for  his  benefit  under 
the  circumstances,  and  that,  consequently,  if  it  were  for  the 
freighter's  advantage  that  the  goods  should  be  forwarded, 
and  an  increased  rate  of  freight  incurred,  the  freighter  would 
be  bound  by  his  agreement  to  pay  such  increased  rate.  No 


1  See  ante,  §  187.    As  to  privilege  of  re-shipping  under  bill  of  lading, 
see  ante,  §  227. 

2  Smith,  Merc.  Law,  305. 

3  Shipton  v.  Thornton,  9  Adol.  &  Ell.  R.  314. 


CH.  IX.]       BIGHT  OF  ACTION  FOB  FREIGHT.          387 

authority  directly  on  the  point  was  cited  from  books  of  the 
Common  Law.  It  was  treated  very  much  as  a  new  point  to 
be  decided  on  principle  ;  and  the  foreign  authorities  upon  the 
subject  of  transshipment  were  elaborately  reviewed  by  Lord 
Denman.  Mumford  v.  Commercial  Insurance  Company  l 
presented  the  same  question.  The  facts  were,  that  goods 
were  captured  during  the  voyage,  and  the  vessel  was  released, 
but  the  goods  detained  for  further  proof,  and  were  afterwards 
restored  on  payment  of  the  full  freight ;  but  the  owner  was 
obliged  to  hire  another  vessel  to  carry  the  goods  to  the  place 
of  their  destination ;  it  was  held,  that  the  insurer  was  liable 
to  pay  this  additional  or  increased  freight,  being  an  expense 
necessarily  incurred  in  consequence  of  the  capture.  Kent, 
C.  J.,  who  delivered  the  opinion  of  the  Court,  said,  that  the 
point  in  question  was  not  anywhere  adjudged  in  the  English 
books,  but  he  considered  that  in  a  case  in  which  no  English 
decisions  are  to  be  met  with,  it  was  usual  and  proper  to  listen 
with  attention  and  respect  to  foreign  jurists.2 

§  404.  What  is  called  "  apportionment  of  freight,"  usually 
happens  when  the  vessel,  by  reason  of  any  disaster,  goes  into 
a  port  short  of  the  place  of  destination,  and  is  unable  to  com- 
plete the  voyage.  In  this  case,  as  we  have  already  seen,  the 
master  may,  if  he  will  and  can  do  so,  hire  another  ship  to 
convey  the  goods,  and  so  entitle  himself  to  his  whole  freight ; 
but  if  he  is  unable  or  declines  to  do  this,  and  the  goods  are 
there  received  by  the  merchant,  he  shall  be  paid  according 
to  the  voyage  performed.3  The  exception  to  the  general 
rule,  that  the  contract  by  the  bill  of  lading  is  indivisible,  and 
that,  therefore,  the  ship-carrier  can  recover  for  no  portion  of 
the  voyage  which  has  been  performed,  unless  the  whole  be 


1  Mumford  v.  Commercial  Ins.  Co.  5  Johns.  (N.  Y.)  R.  262. 

2  The  learned  Judge  cited  Pothier,  Trait.  d'Ass.  n.  52 ;  Marsh,  on  Ins. 
172  ;  and  see  Scheiffelin,  9  Johns.  (N.  Y.)  R.  21 ;  Searle  v.  Scovil, 
4  Johns.  (N.  Y)  Ch.  R.  218. 

3  Abbott  on  Shipp.  434. 


388 


LAW   OF   CARRIERS. 


[CH.  IX. 


performed,  has  already  been  incidentally  stated  to  be,  a  neio 
contract  by  the  merchant  to  accept  the  cargo  short  of  the  place 
of  the  original  destination.  If  the  merchant-freighter  himself, 
or  his  agent  or  consignee,  are  willing  to  dispense  with  the 
performance  of  the  whole  voyage,  and  voluntarily  accept  the 
goods  before  the  complete  service  originally  intended  is 
rendered,  the  law  is,  and  has  long  been,  that  a  proportionate 
amount  of  freight  will  be  due  ;  or  as  it  is  termed,  "  freight 
pro  rata  itineris  peracti"  *  This  equitable  rule  of  maritime 
law  is,  without  doubt,  extremely  ancient,  it  being  found,  as 
Lord  Mansfield  says,  in  Luke  v.  Lyde,2  in  the  marine  laws 
of  Rhodes.  The  Marine  Law  having  decided,  that  in  certain 
cases,  freight  shall  be  paid  pro  rata,  the  Common  Law  pre- 
sumes in  those  cases  a  promise  to  that  effect,  as  being  made 
by  the  party  who  consents  to  accept  his  goods  at  a  place 
short  of  the  port  of  destination  ;  for  he  obtains  his  property, 
with  the  advantage  of  the  carriage  thus  far  ;  and  as  he  cannot 
be  sued  for  freight  on  the  original  contract,  as  that  has  not 
been  performed,  (for  the  purpose  of  justice  and  in  furtherance 
of  the  Marine  Law,)  a  promise  of  partial  payment,  is,  by  the 
Common  Law  implied  from  the  fact  of  the  acceptance  of  the 
cargo.3 

§  405.  Upon  a  review  of  all  the  English  cases  upon  the 
subject,  it  will  appear,  that  considering  the  subject  with 
regard  to  the  proceedings  in  the  Courts  of  Common  Law  the 
right  to  freight  pro  rata  itineris  must  arise  out  of  some  new 
contract  between  the  master  and  the  merchant,  either  ex- 
pressly made  by  them,  or  to  be  inferred  from  their  conduct.4 

1  Abbott  on  Shipp.  434. 

2  Luke  v.  Lyde,  2  Burr.  R.  889. 

3  Jones  on  Carr.  144.     Attention  has  already  been  called  in  another 
Chapter  to  cases,  wherein  an  acceptance  of  the  goods  short  of  the  place 
of  destination,  not  only  excuses  a  non-delivery  by  the  carrier  to  the  place 
originally  intended,  but  renders  the  owner  or  consignee  liable  for  the  pay- 
ment of  a  pro  rata  freight.     See  ante,  §  332. 

4  Abbott  on  Shipp.  448. 


CE.  IX.J  RIGHT   OF  ACTION  FOR  FREIGHT.  389 

The  contract  was  inferred  from  the  fact  of  the  acceptance  of 
the  goods,  in  Luke  v.  Lyde.1  Lord  Mansfield,  in  that  case, 
manifestly  presumed  an  implied  contract  from  the  circum- 
stance that  Lyde  took  the  cargo  saved  into  his  own  possess- 
ion, and  sending  it  to  a  different  port  from  that  of  its  original 
destination,  without  any  demand  on  the  master  to  send  it  for- 
ward by  another  ship.  The  same  principle,  namely,  that  the 
master  cannot  recover  upon  the  original  contract,  which  he 
has  not  performed,  but  must  sue,  if  at  all,  upon  some  new 
contract,  implied  or  expressed,  will  be  found  to  pervade  all 
the  cases.  The  contract  is  expressed  where  the  merchant 
directly  waives  the  prosecution  of  the  voyage  ;  and  it  is 
implied  where  he  accepts  the  goods,  as  if  he  took  them  as  a 
part  of  the  beneficial  service  performed^  though  not  the  whole. 
The  latter  limitation  is  important,  because,  if  he  accepts  them 
only  from  the  necessity  of  the  case,  he,  under  such  circum- 
stances, will  only  take  up  his  own  goods  ;  and  the  Court  will 
not  be  able  to  imply,  that,  by  such  an  acceptance,  he  had  any 
intention  to  waive  the  completion  of  the  whole  agreement.2 

§  406.  Such,  it  may  be  confidently  stated,  is,  on  the  whole, 
the  established  doctrine  in  the  United  States.     All  the  cases, 


1  Luke  v.  Lyde,  2  Burr.  888. 

2  2  Holt  on  Shipp.  150.     In  Cooke  v.  Jennings,  7  T.  R.  38i,  Mr.  J, 
Lawrence  thus  expresses  himself:  —  "  When  a  ship  is  driven  on  shore,  it 
is  the  duty  of  the  master  either  to  repair  the  ship,  or  to  procure  another  ; 
and  having  performed  the  voyage,  he  is  then  entitled  to  his  freight ;  but 
he  is  not  entitled  to  his  whole  freight  unless  he  performs  the  whole  voy- 
age, except  in  cases  where  the  owner  of  the  goods  prevents  him ;  nor  is 
he  entitled  pro  rata,  unless  under  a  new  agreement.     Perhaps  the  subse- 
quent receipt  of  these  goods  by  the  defendant  might  have  been  evidence  of 
a  new  contract  between  the  parties  ;  but  here  the  plaintiff  has  resorted  to 
the  original  agreement  under  which  the  defendant  only  engaged  to  pay  in 
the  event  of  the  ship's  arrival  at  Liverpool.    That  event  has  not  happened, 
and  therefore  the  plaintiff  cannot  recover  in  this  form  of  action."     These 
principles  were  affirmed  by  Lord  Ellenborough  in  Hunter  v.  Prinsep,  10 
East,  R.  378. 

33* 


390  LAW   OF    CARRIERS.  [CH.  IX. 

says  Mr.  Justice  Story,  "  in  which  the  full  freight  is,  on  the 
ordinary  principles  of  commercial  law,  due,  notwithstanding 
the  non-arrival  of  the  goods  at  the  port  of  destination,  may 
be  reduced  to  t-he  single  statement,  that  the  non-arrival  has 
been  occasioned  by  no  default  or  inability  of  the  carrier-ship, 
but  has  been  occasioned  by  the  default  or  waiver  of  the  mer- 
chant-shipper. In  th.e  former  case,  says  he,  the  merchant- 
shipper  cannot  avail  himself  of  his  own  default  to  escape 
payment  of  freight  ;  in  the  latter,  he  dispenses  with  the  entire 
fulfilment  of  the  original  contract,  for  his  own  interest  and 
purposes."  l 

<§>  407,  There  may  be  some  authorities  which  hold,  that  a 
compulsive  receipt  of  goods  by  the  owner  would  render  a  pro 
rata  freight  due.  But  in  such  case,  says  Mr.  J.  Story,  "  I 
conceive  it  now  to  be  well  settled,  that  no  freight  is  due," 
and  the  learned  Judge  asserts  emphatically,  that  there  is  no 
principle  which  would  justify  a  pro  rata  freight,  when  there 
has  been  no  voluntary  acceptance  at  an  intermediate  port, 
dispensing  with  the  further  carriage  of  them,  but  only  an  in- 
voluntary sale  from  necessity,  to  prevent  them  from  there 
perishing  by  a  total  loss.2  In  the  case  of  Welsh  v.  Hicks, 
in  New  York,3  it  is  said  for  the  Court,  by  Sutherland,  J., 
that  "  freight  pro  rata  itineris  is  due  where  a  ship,  in  conse- 
quence of  perils  of  the  sea,  without  any  fault  of  the  master, 
goes  into  a  port  short  of  her  destination,  and  is  unable  to 
prosecute  the  voyage  ;  and  the  goods  are  received  by  the 
owner  at  an  intermediate  port."  On  the  other  hand,  the 
learned  Judge  concedes,  that  where  the  master  refuses  to 
repair  his  ship,  or  to  procure  other  vessels  for  the  purpose, 
and  the  owner  of  the  goods  then  receives  them,  that  is  not 
such  an  acceptance  of  the  goods  as  will  entitle  the  ship- 
owner to  a  pro  rata  freight.  In  such  case,  the  owner  does 


1  The  Nathaniel  Hooper,  3  Sumn.  (Cir.  Co.)  R.  542. 
3  Ibid.,  and  the  numerous  authorities  there  cited. 
3  Welsh  v.  Hicks,  6  Cow.  (N.  Y.)  R.  510. 


CH.  IX.]  RIGHT   OF  ACTION  FOR  FREIGHT.  391 

not  elect  to  receive  his  goods  at  the  intermediate  port,  and 
sell  them  there,  or  become  his  own  carrier  to  the  port  of 
destination.  He  does  not  assent  to  the  termination  of  the 
voyage  ;  but  it  having  been  terminated,  against  his  will,  by 
the  refusal  of  the  master  to  send  on  his  goods  to  the  port  of 
destination,  he  does  not,  by  receiving  them,  under  such  cir- 
cumstances, promise  to  pay  the  freight  to  the  intermediate 
port.1 

§  408.  Upon  the  question,  as  to  the  right  of  the  merchant 
to  abandon  his  goods,  when  brought  to  the  place  of  destina- 
tion, and  by  so  doing,  discharge  himself  from  freight,  dif- 
ferent doctrines  and  opinions,  it  is  said,  have  prevailed,  and 
there  is  in  England  no  judicial  decision;  although  in  some 
cases,  between  the  merchant  and  the  insurer,  it  has  been 
admitted,  that  the  freight  was  payable,  notwithstanding  the 


1  Mr.  Justice  Story,  in  a  note  to  the  5th  Am.  edit,  of  Abbott  on  Shipp., 
commencing  on  p.  547,  thinks  that  the  above  case  of  Welsh  v.  Hicks  is 
entitled  to  much  consideration,  as  it  shows,  that  the  mere  acceptance  of 
the  goods,  unless  it  is  a  matter  of  choice,  does  not  per  se  give  a  title  to 
freight  pro  rata.  He  also  furnishes,  in  the  same  note,  a  summary  state- 
ment of  the  American  decisions,  because  they  do  not,  in  all  respects,  per- 
fectly concur.  The  case  of  Luke  v.  Lyde  seems  at  first  to  have  been  un- 
derstood to  justify  the  claim  of  pro  rata  freight,  whether  there  was  a  vol- 
untary or  a  compulsive  acceptance  of  the  goods  at  an  intermediate  port, 
by  the  owner  or  his  agent;  for  Baillie  v.  Mondigliani,  Park  on  Ins.  61, 
pressed  the  dectrine  so  far  as  to  apply  it  to  cases  where  the  proceeds  were 
received  after  a  compulsive  sale  by  a  prize  Court.  In  Gaze  v,  Baltimore 
Insurance  Company,  ub.  sup.,  the  Supreme  Court  of  the  United  States  are 
of  opinion,  that  the  current  of  more  recent  authority  points  the  other  way. 
The  weight  of  authority  in  this  country,  as  appears  by  the  note  referred 
to,  undoubtedly  is,  as  was  held  in  the  case  of  the  Marine  Insurance  Com- 
pany v.  United  States  Insurance  Company,  9  Johns.  (N.  Y.)  R.  186,  viz. 
that  to  give  a  title  to  freight  pro  rata  itineris,  there  must  be  an  unequivo- 
cal, voluntary,  and  unconditional  acceptance  by  the  owner  at  an  interme- 
diate port,  so  as  to  form  the  basis  of  a  new  contract  to  pay  a  ratable 
freight ;  and  that  the  acceptance  of  the  net  proceeds  of  the  property,  after 
a  capture  and  sale  by  a  prize  Court,  and  restitution  decreed,  constituted  no 
sufficient  title  for  such  freight. 


392  LAW  OF   CARRIERS.  [CH.  IX. 

goods  were  so  much  damaged,  that  their  value  fell  short  of 
its  amount.1  In  Miles  v.  Bainbridge,2  Lord  Ellenborough, 
C.  J.,  intimated,  that  if  the  merchant  had  refused  to  receive 
the  cargo  on  the  ground  of  damages  occasioned  by  default 
of  the  master,  the  point  would  admit  of  some  doubt.  In 
such  case,  as  the  merchant  would  clearly  derive  no  benefit 
whatever  from  tlie  conveyance,  nor  the  master  have  fulfilled 
his  engagement,  according  to  the  terms  of  the  bill  of  lading, 
it  may  very  properly  be  inquired,  what  reason  is  there  why 
the  master  should  oblige  the  merchant  to  pay  the  freight  ?  3 
In  Bartram  v.  M'Kee,  in  Pennsylvania,4  the  point  was  taken 
for  granted  in  the  Common  Pleas  and  in  the  Supreme  Courts, 
that  if  a  person  carry  by  land  or  by  sea,  and  he  has  not  faith- 
fully performed  his  part,  he  cannot  recover  full  compensation  ; 
and  a  deduction  from  the  price  of  freight  was  made  in  that 
case  on  account  of  damage  to  the  goods. 

§  409.  In  Leach  v.  Baldwin,  in  Pennsylvania,5  in  an  action 
by  a  common  carrier  to  recover  the  price  of  transportation, 
it  was  held,  that  the  defendant  might  set  up  as  a  defence, 
negligence  or  want  of  skill  in  the  carrier,  in  consequence  of 
which  the  goods  were  deteriorated  in  value  ;  and  that  any 
facts  which  were  proved,  tending  to  show,  that  the  plaintiff 
did  not  perform  his  part  of  the  contract,  or,  from  negligence 
and  want  of  skill,  performed  it  in  such  a  manner  that  the 
defendant  suffered  loss,  the  latter  might  have  the  amount  of 
such  loss,  as  ascertained  by  the  jury,  deducted  from  the 
amount  of  the  plaintiff's  claim. 

§  410.  The  plaintiff,  who  was  the  owner  of  a  canal  boat, 

1  Abbott  on  Shipp.  427. 

2  Miles  et  al.  v.  Bainbridge  et  a/.,  Guildhall,  Dec.  20,  1804,  before  Lord 
Ellenborough,  C.  J.,  cited  in  note  to  Abbott  on  Shipp.  248. 

3  See  Hasten  v.  Butler,  7  East,  R.  479. 

4  Bartram  v.  M'Kee,  1  Watts,  (Penn.)  R.  39. 

5  Leech  v.  Baldwin,  5  Watts,  (Penn.)  R.  446.      See  Humphrey  v. 
Reed,  6  Whart.  (Penn.)  R.  435. 


CH.  IX.]  RIGHT   OF  ACTION  FOR  FREIGHT.  393 

received  and  gave  a  receipt  for  certain  casks  of  nails,  in  good 
order,  &c.,  which  he  agreed  to  deliver  (the  dangers  of  the 
navigation  excepted)  in  the  like  good  order  and  condition  to 
W.  L.,  Philadelphia,  he  paying  freight  for  the  same  at  a 
certain  rate.  On  the  voyage  to  Philadelphia,  the  boat  struck 
against  a  stone  in  the  bottom  of  the  canal,  by  which  a  hole 
was  knocked  in  her  bottom,  and  the  nails  became  wet  and 
damaged.'  On  her  arrival  at  Philadelphia,  the  captain  of  the 
boat  delivered  the  nails  at  the  wharf  of  the  defendants, 
who  were  forwarding  and  commission  merchants,  with  in- 
structions not  to  deliver  them  until  the  freight  was  paid. 
The  defendants,  however,  delivered  the  nails  to  W.  L.  with- 
out receiving  the  freight.  In  trover  for  the  nails,  it  was  held, 
that  the  defendants  had  a  right  to  show,  that,  in  consequence 
of  the  unskilfulness  or  negligence  of  the  persons  engaged  in 
the  management  of  the  boat,  the  plaintiff  was  not  entitled  to 
recover  the  stipulated  freight.1 

§  411.  In  an  action  brought  in  Illinois  to  recover  the 
amount  of  freight  agreed  to  be  paid  for  the  transportation 
and  delivery  of  a  certain  quantity  of  merchandise  from 
Buffalo  to  Chicago,  evidence,  that  a  portion  of  the  goods 
agreed  to  be  transported  exceeding  in  value  the  whole 
amount  of  the  freight  claimed,  was  through  the  negligence 
and  improper  conduct  of  the  plaintiff,  lost  and  destroyed  on 
the  voyage,  was  held  to  be  admissible,  as  well  in  the  nature 
of  a  set-off,  as,  also,  for  the  purpose  of  reducing  the  amount 
sought  to  be  recovered  by  the  plaintiff.2  It  is  held  likewise 
in  South  Carolina,  that  where  the  damage  done  to  the  goods 
by  the  carrier,  exceeds  the  freight,  to  that  extent,  the  carriers 
right  to  freight  is  defeated.3 

§  412.  On  the  same  principle,  want  of  seaworthiness  may 

1  Humphreys  v.  Reed,  6  Whart.  (Penn.)  R.  435. 

2  Edwards  v.  Todd,  1  Scamm.  (111.)  R.  463. 

3  Edward  v.  Kerr,  2  M'Mull.  (S.  C.)  R.  14. 


394  LAW   OF   CARRIERS.  [CH.  IX. 

be  set  up  as  a  defence  in  an  action  to  recover  the  price  of 
carrying.  In  Dickinson  v.  Haslit,  in  Maryland,1  which  was 
an  action  by  the  shipper  of  goods  against  the  captain  and 
consignee  of  the  cargo,  to  recover  money  retained  for  freight, 
it  was  held,  that  the  plaintiff  was  at  liberty  to  show,  that  the 
vessel  was  not  seaworthy  at  the  commencement  of  the  voyage, 
in  order  to  resist  the  defendants's  claim  to  freight ;  and  that, 
if  the  jury  believed  the  vessel  not  to  have  been  seaworthy  and 
competent  to  perform  the  voyage  at  the  time  of  its  commence- 
ment, then  the  defendant  was  not  entitled  to  retain  any  thing 
for  freight,  and  that  the  plaintiff  was  entitled  to  recover  the 
amount  he  claimed. 

§  413.  It  is  clear,  then,  that  if  a  common  carrier  demand 
compensation  on  a  quantum  meruit,  the  owner  may  show  in 
bar  of  such  demand  for  compensation,  that  the  goods  were 
damaged  in  the  transportation,  by  the  default  of  the  carrier, 
to  an  amount  exceeding  that  of  a  fair  rate  for  the  carriage.2 
And  also,  that,  as  the  owner  may  show  in  evidence  of  the 
carrier's  claim  to  recover  freight,  that  the  goods  were  by  his 
default  injured  in  the  transportation,  his  right  of  lien  is  liable 
to  be  defeated  in  the  same  way.8 

§  414.  But  if  the  carrier  has  conducted  himself  with  vigi- 
lance and  fidelity  in  the  course  of  the  voyage,  he  has  no  con- 
cern with,  nor  is  he  answerable  for  the  value  of  the  goods.4 
A  ship-owner  performs  his  engagement  when  he  carries  and 
delivers  the  goods  ;  the  right  to  his  freight  then  becomes 
absolute,  and  the  carrier  is  not  an  insurer  of  the  soundness  of 
the  cargo,  as  against  its  own  intrinsic  decay;5  not  more  so 
than  he  is  of  the  price  in  the  market  to  which  the  cargo  is 


1  Dickinson  t>.  Haslit,  3  H.  &  Johns.  (Md.)  R.  345. 

2  Schureman  v.  Withers,  Anthon,  (N.  Y.)  N.  P.  C.  468. 

3  Edwards  v.  Kerr,  1  Rice,  (S.  C.)  R.  203. 

*  Leech  v.  Baldwin,  5  Watts,  (Penn.)  R.  446. 
5  Ante,  §210,  211,  et  seq. 


CH.  IX.] 


RIGHT  OF   ACTION  FOR  FREIGHT. 


395 


carried.  It  may  impair  the  remedy  which  his  lien  afforded, 
but  does  not  affect  his  personal  demand  against  the  shipper.1 
Such  was  the  language  of  the  Court  in  Griswold  v.  New 
York  Insurance  Company.2  If  casks  contain  wine,  rum,  or 
other  liquids,  or  sugar,  and  the  contents  are  washed  out  and 
wasted  by  the  sea,  so  that  the  casks  arrive  empty,  no  freight 
is  due  for  them  ;  3  but  the  ship-owner  would  still  be  entitled 
to  his  freight,  if  the  casks  were  well  stowed,  and  their  con- 
tents were  essentially  gone  by  leakage,  or  inherent  waste,  or 
imperfection  of  the  casks.4  The  carrier  has  also  a  right  for 
freight  and  charges  paid,  although  the  goods  may  have  suf- 
fered damage  before  they  reached  him,  while  in  the  hands  of 
a  preceding  carrier.5 

§  414  a.  The  adoption  of  the  principle,  that  the  bill  of 
lading  is  conclusive  on  the  carrier,  not  only  as  to  the  appa- 
rent, but  also  as  to  the  actual  condition  of  the  goods,  would 
impose  on  him  the  necessity  of  opening,  for  self  protection, 


1  3  Kent,  Comm.  224. 

2  Griswold  v.  New  York  Ins.  Co.  3  Johns.  (N.  Y.)  R.  321,  and  see 
Saltus  v.  Ocean  Ins.  Co.  14  Ib.  138. 

3  See  ante,  §212. 

<  3  Kent,  Comm.  224 ;  Frith  v.  Barker,  2  Johns.  (N.  Y.)  R.  327. 
When  the  goods  become  greatly  deteriorated  on  the  voyage,  it  has  been 
a  litigated  question  whether  the  consignee  is  bound  to  take  the  goods  and 
pay  the  freight,  or  whether  he  may  not  abandon  the  goods  to  the  master 
in  discharge  of  the  freight.  Valin  and  Pothier  have  entertained  opposite 
opinions  upon  this  question.  Val.  Com.  tome  i.  670,  Poth.  Ch.  Partie, 
No.  5.  The  former  insists,  that  the  regulation  of  the  ordinance,  holding 
the  merchant  liable  for  freight  on  deteriorated  goods,  without  right  to 
abandon  them  in  discharge  of  the  freight,  is  too  rigorous  to  be  compatible 
with  equity.  He  says  the  cargo  is  the  only  proper  fund  and  pledge  for  the 
freight,  and  that  Cassaregis  was  of  the  same  opinion.  Disc.  22,  n.  46  ;  Ib. 
23,  n.  86,  87.  Pothier,  on  the  other  hand,  was  against  the  right  of  the 
owner  to  abandon  the  deteriorated  goods  in  discharge  of  the  freight,  and 
this  is  the  better  opinion.  3  Kent,  Comm.  224.  The  opinion  of  Pothier 
was  adopted  in  the  case  of  Griswold  v.  New  York  Insurance  Company, 
ub.  sup. 

5  Bowman  v.  Hilton,  11  Ohio  R.  303. 


396  LAW   OF   CARRIERS.  [CH.  IX. 

every  box  of  merchandise,  to  examine  and  ascertain  the  con- 
dition of  its  contents,  before  he  receives  it.  Besides,  the 
injury  that  would  be  inflicted  on  the  owners  of  freight  would 
be  a  cogent  argument  against  such  a  requisition.  A  carrier, 
therefore,  who  receipts  for  goods  as  in  good  condition,  is  not 
estopped  to  show  that  they  were  in  fact  damaged  before  they 
came  into  his  possession.  He  may  show  a  mistake  or  a  fraud 
in  opposition  to  the  recital  in  the  bill  of  lading,  that  the  goods 
were  in  "  good  order  and  condition."  1 

§  415.  In  an  action  by  a  common  carrier  to  recover  the 
price  of  transportation,  the  defendant  cannot  give  evidence 
of  a  breach  of  contract  in  a  different  transaction  in  which 
unliquidated  damages  might  be  due  to  him ;  for  matters 
sounding  in  tort  arising  out  of  a  different  transaction,  cannot 
be  given  in  evidence  as  a  set-off,  though  they  may  be  taken 
advantage  of  when  they  arise  out  of  the  same  transaction, 
and  go  to  defeat  the  plaintiff's  action.2 

§  416.  Freight  being  the  reward  to  which  a  person  is  by 
law  entitled  for  bringing  goods  lawfully  upon  a  legal  voy- 
age, it  is  an  answer  to  an  action  for  freight,  that  the  voyage 
in  respect  to  which  it  is  claimed  was  illegal,  for  ex  turpi  causa 
non  oritur  actio,  or,  as  it  is  interpreted  by  Lord  Mansfield, 
"  justice  must  be  drawn  from  pure  fountains."  3  The  legal 
presumption,  however,  is,  that  the  voyage  was  legal,  as 
every  thing  must  be  taken  to  be  legal  until  the  contrary  is 
proved.4 

1  Chitty  on  Contr.  481  ;  Warden  v.  Greer,  6  Watts,  (Penn.)  R.  424  ; 
Gowdy  v.  Lyon,  9  Mon.  (Ken.)  R.  112.     That  a  bill  of  lading  is  a  mere 
receipt,  subject  to  be  opened  by  proof,  see  also  ante,  $  231. 

2  Gogle  v.  Jacoby,  17  S.  &  Rawle.  (Penn.)  R.  117,  and  cited  in  Leech 
v.  Baldwin,  ub.  sup. 

3  See  Abbott  on  Shipp.  426;  Muller  v.  Gernon,  5  Taunt.  R.  39; 
Blanck  v.  Solly,  8  Ib.  89. 

4  Bennett  v.  dough,  1  B.  &  Aid.  R.  461 ;  Sissons  r.  Dixon,  5  B.  & 
Cress.  R.  758. 


CH.  IX.] 


RIGHT   OF   ACTION   FOR  FREIGHT. 


397 


§  417.  If  the  captain  be  paid  his  freight  on  an  illegal 
voyage,  for  goods  which  are  lost  or  damaged  he  is  answer- 
able for  them,  in  case  the  owner  of  them  was  not  privy  to 
the  illegality  ;  *  and  on  the  other  hand,  if  a  freighter,  by 
loading  prohibited  or  unlawful  goods,  occasions  the  ship's 
detention,  or  otherwise  impede  her  voyage,  he  shall  pay  the 
freight  contracted  and  agreed  for.2 


i  Hatchwell  v.  Cooke,  6  Taunt.  R.  577. 

8  Jones  on  Carr.  153  ;  Beawes,  Lex  Merc.  191. 


34 


398  LAW  OP   CARRIERS.  [CH.  X. 


CHAPTER  X. 

OF  ACTIONS   AGAINST   CARRIERS,  THE   DECLARATION,  PLEAS,  EVI- 
DENCE, DAMAGES,  AND  THE  PARTIES  TO  SUE  AND  BE  SUED. 

1.  Action  against  a  Common  Carrier  for  refusing-  to  re- 
ceive Goods. 

2.  Proceeding's  in  th-e  Admiralty  against  Common  Car- 

riers for  the  Loss  of  Goods. 

3.  Actions  at  Common  Law  for  the  Loss  of  Goods  by 

Carriers. 

4.  Action  on  the  Case. 

5.  Declaration  in  Action  on  the  Case  may  contain  a  Count 
in  Trover. 

6.  Action  of  Assumpsit. 

7.  Distinctive  Character  of  the  Declaration)  as  to  whether 

Case  or  Assumpsit. 

S.  As  to  the  Allegations,  fyc.  in  the  Declaration. 
9.  Pleading. 

10.  Evidence. 

11.  Damages. 

12.  The  Parties  to  sue. 

13.  The  Parties  to  be  sued. 

1.  Action  against  a  Common  Carrier  for  refusing  to  receive 

Goods. 

§  418.  IT  has  been  already  laid  down,  that  a  common 
carrier  is  bound  to  receive  and  carry  all  the  goods  offered  for 
conveyance,  and  that  he  is  liable  to  an  action  in  case  of  re- 
fusal, provided  there  be  offered  a  reasonable  compensation.1 

1  Ante,  §  124. 


CH.  X.]  ACTIONS   AGAINST.  399 

The  form  of  action  in  such  cases  is  case,  in  which  it  is  neces- 
sary that  it  should  be  averred  in  the  declaration,  that  the 
plaintiff  was  willing'  and  ready  to  pay  the  defendant  the 
amount  which  the  defendant  was  legally  entitled  to  receive 
for  the  receipt  and  carriage  of  them  ;  though  it  is  not  neces- 
sary that  he  should  aver  an  absolute  lender.  It  was  so 
decided  in  the  case  of  Pickford  v.  Grand  Junction  Railway 
Company; l  and'it  was  asserted  by  the  counsel  for  the  plain- 
tiffs, in  this  case,  that  no  precedent  of  a  declaration  against  a 
carrier  for  refusing  to  carry  goods  was  to  be  found  in  the 
books.  The  declaration  in  this  case  stated,  "  That  whereas 
the  defendants,  before  and  at  the  time  hereinafter  mentioned, 
to  wit,  on  the  24th  of  November,  1840,  were  common  car- 
riers of  goods  and  chattels  for  hire  from  Birmingham,  in  the 
county  of  Warwick,  to  Manchester,  in  the  county  of  Lancas- 
ter, and  from  Manchester  aforesaid  to  Birmingham  aforesaid, 
and  thereupon  heretofore,  to  wit,  on  the  said  24th  of  Novem- 
ber, 1840,  the  plaintiffs  caused  to  be  tendered  to  the  defend- 
ants, they  being  such  common  carriers  as  aforesaid,  to  wit, 
at  a  certain  place  in  Birmingham  aforesaid,  being  the  place 
by  them  then  used  in  the  way  of  their  said  business  as  com- 
mon carriers,  for  the  receipt  of  parcels  and  goods  to  be  by 
them  carried  and  conveyed  as  such  common  carriers  as  afore- 
said, a  certain  parcel  of  goods  of  the  plaintiffs,  to  wit,  a 
hamper  containing  divers  goods  then  of  great  value,  to  wit, 
of  the  value  of  d£100 ;  and  then  requested  the  defendants  to 
receive,  and  to  carry  and  convey  the  same  from  Birmingham 
aforesaid  to  Manchester  aforesaid  ;  and  the  defendants  then 
had  ample  convenience*  for  receiving  and  carrying  and  con- 
veying the  same  according  to  the  said  requirement  of  the 
plaintiffs  in  that  behalf ;  and  the  plaintiffs  were  then  ready 
and  willing,  and  tlien  offered  to  pay  to  the  defendants,  such  sum 
of  money  as  the  defendants  were  legally  entitled  to  receive  for 
the  receipt  and  carriage  and  conveyance  of  the  said  parcel, 
and  all  other  charges  whatsoever  which  the  defendants  were 

1  Pickford  v.  Grand  Junction  Railway  Co.  S  M.  &  Welsb.  R.  372. 

2  See  ante,  $  125. 


400  LAW   OF   CARRIERS.  [CH.  X. 

then  authorized  or  in  any  wise  entitled  to  make  or  receive  for 
the  receipt,  carriage,  and  conveyance  of  the  said  parcel  from 
Birmingham  aforesaid  to  Manchester  aforesaid,  to  wit,  the 
sum  of  £2 ;  and  the  defendants  then  had  notice  of  the  pre- 
mises ;  yet  the  defendants,  not  regarding  their  duty  as  such 
common  carriers  as  aforesaid,  but  contriving,  and  wrongfully 
and  unjustly  intending  to  injure  the  plaintiffs,  though  they 
did  receive  as  aforesaid,  and  carry  and  convey,  the  goods  of 
divers  other  persons  on  that  occasion  from  Birmingham  afore- 
said to  Manchester  aforesaid,  did  not  nor  would,  at  the  said 
time  when  they  were  so  requested,  or  at  any  time  afterwards, 
receive  the  said  parcel,  or  carry  or  convey  the  same  from 
Birmingham  aforesaid  to  Manchester  aforesaid,  but  wholly 
neglected  and  refused  so  to  do,  though  they  might  and  could, 
and  ought  as  such  carriers,  to  have  received  and  carried  and 
conveyed  the  same  as  aforesaid  ;  whereby  the  plaintiffs  were 
then  forced  and  obliged  to  carry  and  convey  the  said  parcel 
from  Birmingham  aforesaid  to  Manchester  aforesaid,  with 
great  labor,  cost,  and  inconvenience,  and  were  put  to  great 
expense,  &c.,  in  and  about  the  carriage  and  conveyance  of 
the  said  parcel,  &c.,  and  were  and  are  otherwise  greatly 
annoyed,  injured,  inconvenienced,  and  damaged."     To  this 
declaration  there  was  a  special  demurrer,  assigning  for  cause, 
that  the  declaration  did  not  aver  a  fender  to  the  defendants  of 
the  money  which  they  were  entitled  to  receive  for  the  carriage 
of  the  goods.     On  joinder  in  demurrer,  the  judgment  of  the 
Court  was  delivered  by  Parke,  B.,  who  said :  "  The  Court 
think  that  this  is  not  like  the  case  of  a  strictly  legal  tender,  a 
term  which  is  only  applicable  where  an  absolute  duty,  such 
as  the  payment  of  an  antecedent  debt,  is  imposed  on  the 
party  making  it,  in  which  case  the  tender  stands  in  the  place 
of  payment,  and  is  in  fact  payment,  so  far  as  it  is  in  the 
power  of  the  party  tendering  to  make  it  one,  but  which 
remains  incomplete  only  because  the  party  to  whom  the 
money  is  offered  refuses  to  accept  it.     Such  a  tender  we 
consider  to  be  altogether  unnecessary  in  the  present  case; 
the  acts  to  be  done  by  both  parties,  namely,  the  receipt  of 
the  goods,  and  the  payment  of  a  reasonable  sum  for  their 


CH.  X.]  ACTIONS   AGAINST.  401 

carriage,  being  contemporaneous  acts;  the  carrier  being 
bound  to  receive  the  goods  on  the  money  being  paid  or  ten- 
dered, and  the  bailor  to  pay  the  reasonable  amount  demanded, 
on  the  carrier's  taking  charge  of  the  goods.  The  case  of 
Rawson  v.  Johnson  clearly  shows,  that  whenever  a  duty  is 
cast  on  a  party,  in  consequence  of  a  contemporaneous  act  of 
payment  to  be  done  by  another,  it  is  sufficient  if  the  latter 
pay,  or  be  ready  to  pay,  the  money,  when  the  other  is  ready 
to  undertake  the  duty.  Here  the  acts  to  be  done  by  the 
plaintiffs  and  defendants  are  altogether  contemporaneous. 
The  money  is  not  required  to  be  paid  down  by  the  plaintiffs, 
until  the  carrier  receives  the  goods,  which  he  is  bound  to 
carry.  Our  judgment,  therefore,  must  be  for  the  plaintiffs."  l 

2.  Proceedings  in  the  Admiralty  against  Common  Carriers 
for  the  Loss  of  Goods. 

§  419.  For  the  loss  of  goods  delivered  to  a  common  car- 
rier for  transportation  by  sea,  or  to  one,  the  substantial  part 


1  The  case  of  Rawson  v.  Johnson,  cited  by  the  learned  Judge,  (1  East, 
R.  203,)  was  an  action  for  the  non-delivery  of  malt,  which  the  defendant 
had  undertaken  to  deliver  on  request,  at  a  certain  price,  and  it  was  held 
sufficient  for  the  plaintiffs  in  the  declaration  to  aver  such  request,  and  that 
they  were  ready  and  willing  to  receive  the  malt  and  to  pay  for  it  according 
to  the  terms  of  the  sale,  but  that  the  defendant  refused  to  deliver  it,  with- 
out averring  any  actual  tender  of  the  price  ;  and  Lord  Kenyon  said  : 
"  Under  this  averment  the  plaintiffs  must  have  proved  that  they  were  pre- 
pared to  tender  and  pay  the  money,  if  the  defendant  had  been  ready  to 
receive  it,  and  to  have  the  goods  delivered  ;  but  it  cannot  be  necessary,  in 
order  to  entitle  them  to  maintain  their  action,  that  they  should  have  gone 
through  the  useless  ceremony  of  laying  the  money  down,  in  order  to  take 
it  up  again.  It  would  be  repugnant  to  common  sense  to  require  it."  A 
strictly  legal  tender,  it  was  admitted  by  the  counsel  for  the  plaintiffs  in 
the  case  of  Pickford,  &c.  supra,  was  necessary,  where  there  is  a  pre- 
existing debt,  the  amount  of  which  may  be  ascertained  with  precision  by 
the  party  tendering  it.  The  words  tender  and  offer  are  used  in  several 
instances,  however,  as  meaning  the  same  thing.  See  Levy  v.  Herbert,  7 
Taunt.  R.  314,  and  Waterhouse  v.  Skinner,  2  Bos.  &  Pul.  K.  447. 
34* 


402  LAW   OP   CARRIERS.  [CH.  X. 

of  whose  service  is  to  be  performed  within  the  limits  of  tide 
water,  the  proceeding  against  him  may,  under  the  Constitu- 
tion of  the  United  States,  be  in  the  Admiralty,  as  well  as  at 
Common  Law.1  Thus,  a  libel  in  the  Admiralty  was  enter- 
tained in  the  case  of  The  Citizens  Bank  v.  The  Nantucket 
Steamboat  Company,2  for  the  non-delivery  of  certain  packa- 
ges of  bank  bills  by  the  respondents,  which  were  delivered 
to  them  to  be  carried  from  Nantucket  to  New  Bedford.  The 
libel  was  not  in  rem,  but  against  the  Steamboat  Company 
alone,  and  no  question  was  made,  (and  in  the  judgment  of 
Mr.  J.  Story  there  was  no  just  ground  for  such  question,) 
that  the  cause  was  a  case  of  admiralty  and  maritime  juris- 
diction in  the  sense  of  the  Constitution  of  the  United  States, 
of  which  the  District  Court  had  full  jurisdiction  ;  and,  there- 
fore, it  was  properly  to  be  entertained  by  the  Circuit  Court, 
on  appeal  from  the  District  Court. 

§  420.  At  the  December  term  of  the  Supreme  Court  of 
the  United  States,  1847,  a  decree  of  the  Circuit  Court  of 
Rhode  Island  was  affirmed,  which  was  a  judgment  upon  a 
libel  in  personam  against  a  steamboat  company  for  the  loss 
of  specie  carried  in  their  boat,  and  lost  by  fire  in  Long 
Island  Sound.  The  question  of  admiralty  jurisdiction  in 
this  case  was  very  elaborately  and  very  learnedly  discussed 
both  at  the  bar,  and  by  several  of  the  Judges.  Nelson,  J. 
considered  the  contract  of  conveyance  was  a  maritime  con- 
tract, and  the  service  a  maritime  service  to  be  performed  upon 
waters  within  the  ebb  and  flow  of  the  tide ;  and  that  there- 
fore, according  to  several  cases  in  Admiralty  which  had  been 
before  the  Court  at  former  periods,  it  was  within  the  jurisdic- 
tion of  the  Admiralty.  In  this  opinion  Mr.  C.  J.  Taney,  Mr. 
J.  McLean,  and  Mr.  J.  Wayne  (as  the  Reporter  understands) 

1  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  6  How. 
(U.  S.)  R.  378;  King  v.  Shepard,3  Story,  (Cir.  Co.)  R.  349. 

2  Citizens  Bank  v.  Nantucket  Steamboat  Company,  1  Story,  (Cir.  Co.) 
R.  16,  cited  more  fully  ante,  §  102,  103. 


CH.  X.]  ACTIONS   AGAINST.  403 

concurred.  Mr.  J.  Catron  treated  the  question  as  one  not 
depending  on  contract,  but  upon  a  tort;  as  the  fire  occurred 
on  the  high  seas,  it  was  a  tort  there,  and  the  locality  of  the 
tort  is  the  locus  of  jurisdiction.  Mr.  J.  Woodbury  (after  an 
elaborate  review  of  the  authorities,  as  to  the  true  line  of  dis- 
crimination between  the  jurisdiction  belonging  to  the  Com- 
mon Law  Courts  and  that  in  Admiralty)  was  inclined  not  to 
rest  jurisdiction  in  the  Admiralty  over  a  transaction  like  the 
one  in  question  on  contract  alone  ;  but  he  was  in  favor  of  the 
affirmance  of  the  decree  on  the  ground  of  a  recovery  for  the 
wrong  committed  as  a  marine  tort,  rather  than  on  any  breach 
of  contract  which  could  be  prosecuted  in  the  Admiralty.  But 
Mr.  J.  Daniel  was  wholly  in  favor  of  reversing  the  decree  of 
the  Circuit  Court  and  of  dismissing  the  libel  ;  but  all  the  rest 
of  the  learned  Judges,  it  seems,  were  against  him  on  the 
grounds  above  stated.1 

§  421.  In  the  course  of  the  argument  in  the  case  of  The 
Citizens  Bank  v.  The  Nantucket  Steamboat  Company,2  it 
was  intimated,  that  in  libels  of  this  sort,  the  proceedings 
might  properly  be  instituted  both  in  rem  against  the  steam- 
boat, and  inpersonam  against  the  owners  and  masters  thereof. 
But  Mr.  J.  Story  thereupon  was  induced  to  declare,  that  he 
knew  of  no  principle  or  authority,  in  the  general  jurisprudence 
of  Courts  of  Admiralty,  which  would  justify  such  a  joinder 


1  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank.  ub.  sup. 
In  the  case  of  the  Huntress,  Daveis,  (Dist.  Co.)  R.  94,  which  in  its  fea- 
tures was  like  the  case  just  cited,  the  question  whether  the  Admiralty 
Court  had  jurisdiction  over  the  cause  as  one  arising  on  contract  growing  out 
of  a  maritime  service,  was  not  raised  by  counsel  nor  adverted  to  by  the 
Court.     But  there  is  appended   to  the  opinion  of  the  Court  holding  the 
carrier  liable,  some  valuable  and  learned  observations  in  vindication  of  its 
taking  cognizance  of  causes  of  this  description  ;  and  it  is  stated,  that  the 
competency  of  the  Court  to  pass  upon  such  questions,  had  been,  in  the 
Maine  District,  in  several  cases  in  which  the  same  general  question  was 
involved,  maintained. 

2  Ub.  sup. 


404 


LAW   OP   CARRIERS. 


[CH.  X. 


of  proceedings,  so  different  in  their  nature  and  character,  and 
decretal  effect ;  but,  on  the  contrary,  every  practice  of  this 
sort  had  been  discountenanced  as  illegal  and  improper. 

3.  Actions  at  Common  Law  for  the  loss  of  Goods  by 
Carriers. 

§  422.  It  appears  by  the  two  cases  last  cited,  that  common 
carriers  by  sea  are  liable  to  be  proceeded  against  in  the 
Admiralty  for  the  loss  of  goods  delivered  to  them  for  trans- 
portation, both  ex  contractu  and  ex  delicto,  or,  in  other  words, 
for  a  breach  of  contract  and  for  a  breach  of  duty.  But  in 
respect  to  the  proper  form  of  action  at  Common  Law  against 
all  common  carriers,  there  was  for  a  long  time  a  question, 
and  one  much  agitated  among  pleaders  ;  and  it  was  natural 
that  the  question  should  arise  out  of  the  innovation  upon  the 
Common  Law  duties  of  carriers.  As  long  as  their  occupa- 
tion was  considered  only  as  a  public  duty,  the  breach  was 
tort,  for  which  they  were  liable  to  an  action  on  the  case, 
founded  upon  the  custom  of  the  realm  ;  or,  in  other  words, 
upon  the  Common  Law.  In  time,  however,  they  succeeded 
in  establishing  the  existence  of  a  contract,  and  then  they  at 
once  became  liable  to  an  action  of  assumpsit  on  their  under- 
taking ;  and  a  very  long  established,  continued,  and  uniform 
usage  has  sanctioned  the  principle  and  adopted  the  advanta- 
ges of  both  forms  of  action  ;  so  that  the  case  may  be  consid- 
ered either  way,  as  arising  ex  contractu  or  ex  delicto,  according 
as  the  neglect  of  duty,  or  breach  of  promise,  is  intended  to 
be  relied  on  as  the  cause  of  injury.1  The  practice  of  declar- 


1  Jeremy  on  Carr.  116,  117.  And  see  the  concluding  portion  of  the 
note  to  Coggs  v.  Bernard,  in  1  Smith's  Leading  Cases,  96,  (Am.  edit., 
Philadelphia,  1847.)  Also  Boson  v.  Sandford,  Salk.  R.  44,  and  2  Show. 
R.  478.  Per  Dennison,  J.,  in  Dale  v.  Hall,  1  Wils.  R.  282  :  — "The 
declaration  upon  the  custom  of  the  realm,  is  the  same  in  effect  with  the 
present  declaration  (in  assumpsit.)  In  the  old  forms,  it  is  that  the  defend- 
ant suscepit,  &c.,  which  shows  that  it  is  ex  contractu,"  and  this  authority 


CH.  X.]  ACTIONS   AGAINST.  405 

ing  against  common  carriers  on  the  custom  of  the  realm  was 
as  ancient  as  the  law  itself,  and  was  uniformly  adopted  until 
the  case  of  Dale  v.  Hall,1  when  the  practice  of  declaring  in 
assumpsit  succeeded ;  but  for  four  hundred  years  before  that 
time  the  declaration  was  in  tort  on  the  custom.2 

4.  Action  on  the  Case. 

§  423.  Each  of  the  two  forms  of  action,  and  modes  of 
considering  the  question  above  mentioned,  has  its  peculiar 
advantages  and  inconveniences ;  and  first,  as  to  the  action  on 
the  case  for  a  breach  of  duty,  or  for  a  tort.  As  a  general  rule, 
where  there  is  any  doubt,  as  to  the  defendants,  it  is  better  if 
possible  to  declare  in  tort,  rather  than  ex  contractu,  for  the 
reason  that  the  consequences  of  a  misjoinder  or  nonjoinder 
of  parties  are  less  serious  in  the  former  than  in  the  latter 
case.3  In  the  case  of  Bretherton  v.  Wood,  in  the  Exchequer 
Chamber,4  there  were  too  many  defendants.  The  plaintiff 
below,  in  an  action  on  the  case  against  ten  defendants  as 
proprietors  of  a  coach,  for  injuries  sustained  by  the  plaintiff, 
in  consequence  of  negligence  in  driving,  the  jury  found  a 
verdict  against  eight  of  the  defendants,  and  in  favor  of  the 
other  two.  Dallas,  C.  J.,  who  delivered  the  judgment  of  the 
Court,  said  :  —  "  This  action  is  on  the  case  against  a  com- 
mon carrier,  upon  whom  a  duty  is  imposed  by  the  custom  of 


was  cited  by  Lord  Kenyon  in  Buddie  v.  Wilson,  6  T.  R.  373.  See  also 
Govett  v.  Radnidge,  3  East,  R.  63  ;  Ross  v.  Johnson,  5  Burr.  R.  2825  ; 
Dickon  v.  Clifton,  2  Wils.  R.  319  ;  Powell  v.  Layton,  2  B.  &  Pull.  R. 
365 ;  Hamblay  v.  Trott,  Cowp.  R.  375 ;  Bretherton  v.  Wood,  5  B.  & 
Bins.  R-  5/1  ;  Orange  Bank  v.  Brown,  3  Wend.  (N.  Y.)  R.  158  ;  Weed 
v.  Schenectady  and  Saratoga  Railroad  Company,  19  Wend.  (N.  Y.)  R. 
534 ;  Smith  v.  Seward,  3  Barr,  (Penn.)  R.  342 ;  Pozzi  v.  Shipton,  8 
Adol.  &  Ell.  R.  963. 

1  Dale  v.  Hall,  ub.  sup.,  decided  in  1750. 

2  Per  Bayley,  J.,  in  Ansel  v.  Waterhouse,  2  Chitt.  R.  I. 

3  See  the  cases  referred  to  in  the  preceding  section. 
«  Bretherton  v.  Wood,  3  B.  &  Bing.  R.  54. 


406  LAW    OF    CARRIERS.  [CH.  X 

the  realm,  or  in  other  words,  by  the  Common  Law,  to  carry 
and  convey  their  goods  and  passengers  safely  and  securely, 
so  that,  by  their  negligence  or  default,  no  injury  or  damage 
happen.  A  breach  of  this  duty  is  a  breach  of  the  law,  and 
for  this  breach  an  action  lies,  founded  on  the  Common  Law, 
which  action  wants  not  the  aid  of  a  contract  to  support  it. 
It  appears  by  the  different  books  of  entries,  Brownlow  Redi- 
vivus,  11 ;  Clift.  38,  39 ;  Mod.  Ent.  145,  that  this  form  of 
action  is  a  very  ancient  use.  Nor  is  it  material  whether 
redress  might  or  might  not  have  been  had  in  an  action  of 
assumpsit  :•  that  must  depend  on  the  circumstances  of  which 
this  Court  has  no  knowledge ;  but  whether  the  action  of 
assumpsit  might  or  might  not  have  been  maintained,  still  this 
action  on  the  case  may  be  maintained.  The  action  of  assump- 
sit, as  applied  to  cases  of  this  kind,  is  of  modern  use.  If  the 
action  be  not  founded  on  a  contract,  but  on  breach  of  duty 
depending  on  the  Common  Law,  on  a  tort  or  misfeasance, 
it  cannot  be  contended  that  the  judgment  is  erroneous  ;  for, 
from  the  nature  of  the  case,  and  the  form  of  the  action,  it  is 
several  and  not  joint,  and  may  be  maintained  against  some 
only  of  those  against  whom  it  is  brought."  J 

§  424.  So  in  M'Call  v.  Forsyth,  in  Pennsylvania,2  it  was 
held,  that  for  an  injury  done  to  a  passenger  by  the  upsetting 
of  a  stage-coach,  the  remedy  of  the  party  might  be  either 
case  or  assumpsit ;  and  that  if  the  former  is  adopted,  he  may 
recover  against  all  those  who  are  liable  ;  but  if  the  latter,  the 
plaintiff,  to  entitle  him  to  recover,  must  prove  the  liability  of 
all  the  parties  sued. 

§  425.  It  has  long  been  well  settled  in  England,  that  if  a 


1  The  decision  in  this  case  was  cited  and  approved  by  Baron  Parke,  „» 
giving  judgment  in  Wyld  v.  Pickford,  8  M.  &  Welsh.  R.  490. 

2  M'Call  v.  Forsyth,  4  Watts  &  S.  (Penn.)  R.  179.     A  verdict  against 
one  defendant,  and  in  favor  of  another,  held  good  in.  Smith  v.  Seward, 
3  Barr,  (Penn.)  R.  342. 


CH.  X.]  ACTIONS  AGAINST.  407 

carrier  in  partnership  is  sued  singly  in  an  action  arising  ex 
delicto,  he  cannot  plead  the  non-joinder  of  the  others  in 
abatement  or  in  bar,  or  give  it  in  evidence  under  the  general 
issue  ;  for  a  plea  in  abatement  can  only  be  adopted  in  those 
cases  where  regularly  all  the  parties  must  be  joined,  and  not 
where  the  plaintiff  may  or  may  not  join  them  at  his  election.1 
Therefore,  to  an  action  on  the  case  against  the  defendants, 
part  owners  of  a  ship  for  the  negligence  of  their  servant  in 
running  down  a  ship  laden  with  sugar  belonging  to  the  plain- 
tiff, whereby  the  sugar  was  lost,  it  was  held,  that  the  defend- 
ants could  not  plead  in  abatement,  that  there  were  other  part 
owners  not  joined  in  the  suit,  because  the  action  being  ex 
delicta,  the  trespass  was  several.2  So,  in  an  action  on  the 
case  against  a  common  carrier  by  land,  for  not  safely  carry- 
ing a  passenger,  it  was  held,  that  the  defendant  could  not 
plead  in  abatement  the  non-joinder  of  a  co-proprietor.3 

§  426.  The  subject  was  very  fully  considered  by  Mr.  C.  J. 
Savage,  in  giving  the  opinion  of  the  Court  in  the  case  of 
Orange  Bank  v.  Brown  &  five  others,  in  the  Supreme  Court 
of  the  State  of  New  York.4  In  this  case  there  were  too  few 
defendants.  The  defendants  were  charged  in  the  declara- 
tion as  common  carriers,  for  the  loss  of  property  put  on 
board  their  steamboat  for  transportation,  and  the  gravamen 
was  stated  to  have  arisen  from  a  breach  of  duty  ;  and  there 
was  a  plea  in  abatement  that  there  were  fifty-four  other 
proprietors  who  were  jointly  liable.  The  learned  Judge, 
after  an  elaborate  review  of  the  English  authorities,  com- 
mencing with  one  of  the  earliest  cases  concerning  the  point 
in  question,  viz.  Boson  v.  Sandford,5  and  ending  with  the 


1  Gow  on  Part.  201  ;  Childs  v.  Sands,  Garth.  R.  294. 

2  Mitchell  ».  Tarbutt,  5  T.  R.  649. 

3  Ansel  v.  Waterhouse,  2  Chitt.  R.  1. 

4  Orange  Bank  v.  Brown,  3  Wend.  (N.  Y.)  R.  158. 

5  Boson  v.  Sandford,  2  Show.  R.  478. 


408 


LAW   OF   CAKHIEKS. 


[CH.  X. 


case  of  Bretherton  v.  Wood,  decided  in  1821,1  says:  "  It  is 
not  to  be  denied,  that  there  has  been  a  difference  of  opinion 
between  some  of  the  English  Judges  on  the  question, 
whether  an  action  against  a  common  carrier  is  an  action 
founded  on  a  tort  or  on  a  contract.  Dallas,  C.  J.  seems  to 
put  that  question  at  rest,  by  bringing  it  to  a  very  fair  test : 
Does  it  require  the  plaintiff  to  show  a  contract,  express  or 
implied,  to  support  it  ?  The  action  on  the  case  was  at  last 
decided  to  be  for  a  tort.2  This  was  clearly  the  opinion  of 
Lord  Mansfield,  in  the  case  cited  by  C.  J.  Mansfield ;  3  and 
all  the  cases  in  which  it  has  been  held  necessary  to  join  all 
the  joint  owners,  have  been  said  by  distinguished  Judges  to 
be  clearly  actions  upon  a  promise.  Much  of  the  confusion 
has  probably  grown  out  of  the  forms  of  declaring  in  some 
of  the  cases,  where  it  is  difficult  to  determine  whether  the 
promise  and  undertaking  often  stated  in  the  count,  or  the 
custom  of  the  realm,  also  stated,  is  intended  by  the  pleader 
to  be  the  foundation  of  the  action.  I  apprehend  the  true  rule 
now  is,  that  the  action  solely  upon  the  custom  is  an  action  of 
tort ;  that  in  such  action  all  or  any  number  of  the  owners  of 
a  vessel,  coach,  or  any  kind  of  conveyance  used  by  common 
carriers,  may  be  sued,  and  judgment  may  be  rendered  on  a 
verdict  against  all  or  a  part  only  of  those  against  whom  the 
action  is  brought ;  the  plaintiff  has  his  choice  of  remedies, 
either  to  bring  assumpsit  or  case  ;  and  that  when  one  or  the 
other  action  is  adopted,  it  must  be  governed  by  its  own 
rules.  But  if  the  plaintiff  states  the  custom,  and  also  relies 
on  an  undertaking  general  or  special,  as  in  Boson  v.  Sand- 
ford,4  and  some  others,  then  the  action  may  be  said  to  be 
ex  delicto  quasi  ex  contractu,  but  in  reality  is  founded  on  the 
contract,  and  to  be  treated  as  such.  In  Allen  v.  Sewall,  in 

1  Bretherton  v.  Wood,  5  Bro.  &  Bing.  R.  54  ;  and  ante,  §  423. 

2  Ibid. 

3  Powell  v.  Layton,  5  Bos.  &  Pul.  R.  365,  in  which  the  opinion  was 
given  by  Sir  James  Mansfield,  C.  J.  citing  the  opinion  of  Lord  Mansfield 
in  Hambly  v.  Trott,  Cowp.  R.  375. 

4  Boson  v.  Sandford,  2  Show.  R.  478. 


CH.  X.]  ACTIONS   AGAINST.  409 

giving  the  opinion  of  the  Court,  I  remarked  that  all  the  co- 
partners should  have  been  sued,  as  the  action  was  quasi  ex 
contraclu.  It  was  unnecessary  in  that  case  to  say  any  thing 
on  that  point,  as  no  plea  in  abatement  had  been  pleaded  ;  and 
upon  further  examination,  I  am  satisfied  the  remark  is  in- 
correct, for  the  reasons  above  assigned.1  It  is  certainly  now 
settled  in  England,  that  an  action  against  a  common  carrier 
upon  the  custom,  is  founded  on  a  breach  of  duty  ;  that  it  is  a 
tort  or  misfeasance  ;  and  it  follows,  that  it  is  joint  or  several. 
In  the  case  now  under  consideration  all  the  counts  are  sub- 
stantially upon  the  custom  and  in  case,  though  some  of 
them  contain  expressions  similar  to  those  used  in  actions  of 
assumpsit ;  but  there  is  none  of  them  which  relies  upon  any 
undertaking  of  the  defendants,  and  they  all  state  the  grava- 
men to  be  a  breach  of  duty.  I  am  therefore  of  opinion,  that 
an  action  on  the  case  against  a  common  carrier  belongs  to 

o  o 

the  class  of  actions  arising  upon  a  tort  or  misfeasance  ex 
delicto  ;  and  that  such  actions,  being  as  well  several  as  joint, 
it  is  unnecessary  to  join  all  the  tort-feasors."  2 

§  427.  It  has  been  said,  that  if  the  plaintiff  himself  shows 
in  his  declaration  or  other  pleading,  that  the  tort  was  jointly 
done  by  the  defendant  and  A.  B.,  the  action  shall  abate  ; 8 
but  Mr.  Sergeant  "Williams  observes,  there  is  no  ground  for 
the  distinction.4  The  position  which  was  advanced,  that 
where  there  is  any  doubt  as  to  the  parties  defendants,  it  is 
better,  if  possible,  to  declare  in  tort  rather  than  ex  contractu, 
because  the  consequences  of  a  misjoinder  or  non-joinder  are 
less  serious  in  the  former  than  in  the  latter  case,  is  therefore 
entirely  supported.6 

1  Allen  v.  Sewall,  2  Wend.  (N.  Y.)  R.  338.     The  action  in  this  case 
was  an  action  on  the  case  as  for  a  tort. 

2  See  also  Weed  ».  Schenectady  and  Saratoga  Railroad  Company, 
19  Wend.  (N.  Y.)  R.  534. 

3  Brickhead  v.  Archbishop  of  York,  Hob.  R.  199. 

4  1  Wms.  Saund.  291 ;  Coll.  on  Part.  640. 

5  See  Browne  on  Actions  at  Law,  310 ;  2  Chitt.  PL  156,  note  (h). 

35 


410  LAW   OF   CARRIERS.  [CH.  X. 

§  428.  Another  advantage  of  declaring  in  case  upon  a  tort, 
when  the  circumstances  are  such  as  to  give  the  plaintiff  an 
election,  is,  that  it  is  not  necessary  to  state  the  undertaking 
with  as  much  form  as  is  required  in  an  action  of  assumpsit ; l 
for  it  is  a  general  well  settled  principle,  that  in  declaring  on 
an  executory  contract,  great  exactness  is  demanded,  and  the 
plaintiff  must  prove  his  case  as  laid.2  In  all  cases  where  the 
action  is  not  on  the  contract,  but  for  a  breach  of  collateral 
duty,  the  gist  is  a  personal  tort ; 3  and  it  is  enough,  that  the 
proof  conforms  substantially  to  the  statements  in  the  declara- 
tion.4 Thus,  where  the  allegation  was  negligence  in  the  con- 
duct and  management  of  the  fires  in  the  furnaces  of  a  steam- 
boat, while  such  boat  was  passing  the  plaintiff's  building  ;  it 
was  held  competent  to  prove,  that  the  fires  were  unusually 
large  when  the  boat  left  the  dock,  shortly  before.5 

§  429.  In  an  action  on  the  case  against  a  common  carrier, 
it  is  not  necessary  to  state  what  his  duty  was ;  it  being  suffi- 
cient to  state,  as  inducement,  that  he  is  a  common  carrier, 
the  delivery  of  the  goods,  &c.  to  be  carried  from  A.  to  B.  for 
certain  hire  or  reward  ;  and,  as  injury,  that  the  defendant  lost 
the  goods  through  negligence,  omitting  the  allegation  of  any 


This  is  not  merely  a  formal  distinction.  A  Court  of  Law  will  not  sustain 
an  action  for  contribution  between  two  joint  trespassers  ;  or  between 
defendants  condemned  in  damages  for  a  joint  offence,  or  cause  of  action 
arising  ex  deliclo ;  and  the  defendant  on  whom  the  whole  is  levied  has  no 
remedy  over.  And  there  appears  to  be  no  decision  to  the  contrary  in 
Chancery.  Per  Chancellor  Kent,  in  Peck  v.  Ellis,  2  Johns.  (N.  Y.)  Ch. 
R.  136,  and  the  cases  there  cited  of  Lingard  v.  Bromley,  1  Yes.  &  Bea. 
B.  117  ;  Phillips  v.  Biggs,  Hard.  R.  164. 

1  Per  Parke,  Baron,  in  Wyld  v.  Pickford,  8  M.  &  Welsh.  R.  443. 

2  See  opinion  of  Cowen,  J.,  in  Weed  v.  Schenectady  and  Saratoga  Rail- 
road Company,  and  the  cases  there  cited. 

3  Zell  v.  Arnold,  2  Penn.  R.  292,  Opinion  of  Gibson,  C.  J.,  who  said 
it  was  emphatically  the  gravamen  in  an  action  against  a  barber  for  barber- 
ing  his  customer,  negligenter  et  inartificialiler.     2  Bulst.  R.  333. 

4  Ib. ;  1  Arch.  N.  P.  412. 

5  Cook  v.  Champlain  Trans.  Co.  1  Denio,  (N.  Y.)  R.  81. 


CH.  X.]  ACTIONS   AGAINST.  411 

promise.1  The  liability  of  a  common  carrier  for  the  loss  of 
goods  being  a  liability  founded  on  the  custom  of  the  realm, 
it  is  not  only  unnecessary,  but  improper,  to  recite  such  cus- 
tom ;  because  it  tends  to  confound  the  distinction  between 
special  customs  which  ought  to  be  pleaded,  and  the  general 
customs  of  which  the  Courts  are  bound  to  take  notice  without 
pleading.2 


1  1  Arch.  N.  P.  412 ;  and  see  opinion  of  Cowen,  J.,  in  Weed  v.  Sche- 
nectady  and  Saratoga  Railroad  Co.  ub.  sup. 

2  1  Chitt.  PI.  248.     As  it  respects  the  inducement,   the   declaration 
states,  —  "  For  that  whereas  the  defendant  before  and  at  the  time  of  the 
delivery  of  the  goods  and  chattels  to  him  as  next  hereinafter  mentioned, 
was,  and  thence  hitherto  has  been  and  still  is,  a  common  carrier  of  goods 

and  chattels  for  hire  from to ;  and  whereas  also  the  plaintiff, 

whilst  the  defendant  was  such  common  carrier  as  aforesaid,  to  wit,  on. 

,  caused  to  be  delivered  to  him  the  said  defendant,  and  the  defendant 

then  accepted  and  received  of  and  from  the  plaintiff,  a  certain  box  con- 
taining divers  goods  and  chattels,  to  wit,  [specifying  them]  of  the  plaintiff 
of  great  value,  to  wit,  of  the  value  of dollars,  to  be  safely  and  se- 
curely carried  and  conveyed  by  him  the  said  defendant  from aforesaid 

to aforesaid,  and  there,  to  wit,  at aforesaid,  safely  and  securely 

to  be  delivered  for  the  plaintiff,  for  certain  reasonable  reward  to  him  the 
defendant  in  that  behalf."     In  respect  to  the  injury:  "  Yet  the  defendant, 
not  regarding  his  duty  as  such  common  carrier  as  aforesaid,  but  contriving 
and  fraudulently  intending  craftily  and  subtly  to  deceive,  defraud,  and  in- 
jure the  plaintiff  in  this  behalf  did  not,  nor  would,  safely  or  securely  carry 
or  convey  the  said  box  and  its  contents  aforesaid  from aforesaid  to 

—  aforesaid,  nor  there,  to  wit,  at  aforesaid,  safely  or  securely 

deliver  the  same  for  him  the  plaintiff;  but  on  the  contrary  thereof,  the  said 
defendant,  so  being  such  common  carrier  as  aforesaid,  so  carelessly  and 
negligently  behaved  and  conducted  himself  in  the  premises,  that  by  and 
through  the  carelessness,  negligence,  and  fault  of  the  defendant  in  the  pre- 
mises, the  said  box  and  its  contents  aforesaid,  being  of  the  value  aforesaid, 
became  and  were  wholly  lost  to  the  plaintiff.?'  Then  as  to  the  damage: 
"  Whereby,  &c.,  (slating  special  damage,  if  any)  to  the  plaintiffs  damage 

of dollars,  and  thereupon  he  brings  suit."     1  Arch.  N.  P.  438.     The 

plea  of  "  not  guilty  "  in  this  case  operates  a  denial  of  the  loss  or  damage, 
but  not  of  the  receipt  of  the  goods  by  the  defendant  as  a  carrier  for  hire, 
or  for  the  purpose  for  which  they  were  carried.  Ib.  The  advantages  of 
an  action  on  the  case,  other  than  those  that  the  defendant  cannot  plead  in 
abatement  the  non-joinder  of  other  parties  as  defendants,  and  that  the 


412  LAW    OF   CARRIERS.  [CH.  X. 

5.  Declaration  in  Action  on  the  Case  may  contain  a  Count  in 

Trover. 

§  430.  Another  advantage  of  bringing  an  action  on  the 
case  against  a  carrier  for  a  breach  of  duty,  is,  that  a  count 
in  trover  may  be  joined  with  the  other  counts.  In  the  case 
of  Dickon  v.  Clifton,1  the  declaration  was  in  case  with  a 
count  in  trover  ;  and  Lord  C.  J.  Wilrnot  observed,  "  I  own 
that  in  many  books  it  is  reported,  that  trover  and  a  count 
against  a  common  carrier,  cannot  be  joined,  but  common 
experience  and  practice  is  now  to  the  contrary."  The  true 
test,  said  he,  "  to  try  whether  two  counts  can  be  joined  in  the 
same  declaration,  is  to  consider  and  see  whether  there  be  the 
same  judgment  in  both,  and  not  whether  they  require  the  same 
plea  ;  and  wherever  there  is  the  same  judgment  in  both,  I  think 
they  may  be  joined."  Clive,  J.,  said,  "  I  am  of  my  Lord's 
opinion,  that  the  true  test  is  to  see  whether  both  counts  require 
the  same  judgment  ;  and  in  this  case  they  do,  and  the  plaintiff 
must  have  judgment."  Lord  Ellenborough,  C.  J.,  in  Govett 
v.  Radnidge,2  recognizing  the  observation  of  Lord  C.  J.  Wil- 
mot  in  the  case  just  cited,  added,  "  that  when  the  counts 
were  framed  in  this  manner,  it  was  then  the  daily  and  well 
warranted  practice,  to  join  them."  3 

§  431.  An  essential  component  part,  however,  of  the  right 
to  maintain  a  count  in  trover,  is  a  conversion  by  the  defendant, 
which  term  denotes  an  act,  and  is  therefore  in  legal,  as  well 


plaintiff  may  recover  if  he  prove  one  of  several  defendants  to  be  liable, 
which  he  cannot  do  in  assumpsit,  are  explained  by  Lord  Ellenborough,  in 
Govett  v.  Radnidge,  3  East,  R.  70. 

1  Dickon  v.  Clifton,  2  Wils.  R.  319. 

2  Govett  v.  Radnidge,  3  East,  R.  69. 

3  In  an  action  on  the  case,  the  counts  may  be  joined  with  a  count  in 
trover.     M'Cahan  v.  Hirst,  7  Watts,  (Penn.)  R.  175.     A  count  in  trover 
was  joined  with  counts  in  case  in  Dwight  v.  Brewster,  1  Pick.  (Mass.)  R. 
50 ;  and  see  also  Moses  v.  Norris,  4  N.  Hamp.  R.  304;  Wyld  v.  Pick- 
ford,  8  M.  &  Welsh.  R.  443  ;  and  see  ante,  §  38,  63. 


CH.  X.]  ACTIONS   AGAINST.  —  TROVER.  413 

as  in  ordinary,  construction,  very  different  from  an  omission.1 
A  conversion  is,  in  the  language  of  the  law,  a  misfeasance ; 2 
it  consists  in  the  commission  of  a  tortious  act,  and  is,  (to  be 
more  definite,)  the  wrongful  assumption  of  the  right  of 
ownership  over  property  to  the  prejudice  of  the  superior 
owner  ;  as,  taking  property  by  assignment  from  one  who 
had  no  authority  to  dispose  of  it.3  The  very  assuming,  says 
Lord  Holt,  to  oneself  the  right  to  dispose  of  another  man's 
goods,  is  a  conversion  ; 4  and,  accordingly,  it  has  been  holden, 
that  if  a  carrier  draw  out  a  part  of  a  vessel  and  fill  it  up  with 
water,  it  is  a  conversion  of  all  the  liquor.5  It  is,  therefore, 
very  clear,  that  if  a  carrier  should  sell  and  transfer  the  goods 
intrusted  to  him  for  transportation,  it  is  a  conversion,  because 
the  bailment  would  be  ended.6  A.  undertook  to  carry  flour 
from  B.  to  a  certain  place,  and  through  mistake  deposited  by 
the  way  a  part  of  the  flour,  which  was  taken  away  by  C.  On 
the  refusal  of  B.  to  receive  part  only,  C.  took  the  remainder 
and  paid  A.  for  the  whole.  This  was  held  to  amount  to  a 
conversion  by  the  carrier,  which  would  support  a  count  in 
trover.7  The  master  of  a  ship  which  is  completely  wrecked 
in  a  foreign  port,  has  no  power  of  selling  the  goods  on  freight 
saved  from  the  wreck,  unless  there  be  an  absolute  necessity 
for  such  sale  ;  8  and  such  sale,  though  bond  fide  and  in  market 
overt,  is  not  binding  on  the  owner  of  the  goods,  if  the  con- 


*  Ross  v.  Johnson,  5  Burr.  R.  2827  j   Dwight  v.  Brewster,  1  Pick. 
(Mass.)  R.  50. 

2  For  the  distinction  between  misfeasance  and  negligence,  see  ante,  §  12. 

3  M'Combie  v.  Davis,  6  East,  R.  538. 

4  Baldwin  ».  Cole,  6  Mod.  R.  212. 

5  Richardson  v.  Atkinson,  1  Str.  R.  576. 

6  See  ante,  §  349,4  et  seq.     Every  bailee  of  goods  for  hire,  by  selling 
them,  determines  the  bailment ;  and  the  bailor  may  maintain  trover  against 
the  purchaser,  though  the  purchase  was  bond  fide.     Cowper  v.  Willomatt, 
1  C.  B.  672,  thus  cited  in  6  Harr.  Dig.  145. 

7  Bullard  v.  Young,  3  S.  (Ala.)  R.  46.     See  also  Herman  ».  Drink- 
water,  1  Greenl.  (Me.)  R.  27. 

8  See  ante,  §  354,  and  the  authorities  there  referred  to. 

35* 


414  LAW   OF   CARRIERS.  [CH.  X. 

duct  of  the  vendee  imports  knowledge  of  the  infirmity  of 
the  master's  title  to  sell.1 

§  432.  So  a  count  in  trover  will  be  supported  by  a  deliv- 
ery of  the  goods  by  the  carrier  or  his  servant  to  a  wrong 
person,  even  though  such  mis-delivery  occurred  by  mistake  ; 2 
and  that  there  has  been  no  intentional  wrong  makes  no  differ- 
ence.3 A  mis-delivery  may  be  made  by  a  careful  person, 
who  has  been  deceived  by  an  artifice  calculated  to  circum- 
vent the  most  careful  person,  and  still  it  is  a  conversion, 
(though  not  necessarily  a  proof  of  want  of  ordinary  care,) 
because  it  gives  the  dominion  over  the  goods  to  another.4 
Therefore,  trover  can  be  supported  against  a  carrier,  who, 
under  a  forged  order,  delivers  goods  to  a  wrong  person.5 

§  433.  But  where  the  act  itself  is  not  of  a  character  as 
decisive  as  in  the  abovementioned  cases,  other  circumstances 
then  became  requisite  to  show  a  conversion  ;  and  for  this 
purpose  a  demand  and  refusal  are  usually  relied  on  to  make 

1  Freeman  v.  East  India  Company,  1  D.  &  Ry.  R.  234  ;  and  see  also 
as  to  when  trover  will  lie,  ante,  §  38,  63.     If  any  bailee  for  hire  of  a 
thing  for  a  limited  period,  should  sell  the  thing,  the  bailment  would  be 
ended,  and  a  suit  might  be  maintained  against  him  by  the  bailor  for  a  tort- 
ious  conversion  thereof.      Story  on  Bailm.  §  413  ;  Sargent  v.  Gile,  8  N. 
Hamp.  R.  325.     A  judgment  in  an  action  of  assumpsit  against  a  bailee 
for  a  breach  of  his  contract  to  transport  and  deliver  the  property  bailed, 
in  which  the  owner  has  recovered  damages  for  the  value  of  the  property, 
without  satisfaction,  is  no  bar  to  an  action  of  trover  against  a  third  person 
who  has  purchased  the  property.      Hyde  v.  Noble,  1  N.  Hamp.  R.  (2d 
series)  494. 

2  See  ante,  §  324,  325,  326.     If  a  warehouseman  mis-deliver  by  mis- 
take, it  is  a  conversion,  because  it  is  an  act  of  commission,  and  not  merely 
omission,  as  the  loss  is.     Devereux  v.  Barclay,  2  B.  &  Aid.  R.  702. 

3  Ibid. ;  Hawkins  v.  Hoffman,  6  Hill,  (N.  Y.)  R.  588  ;  Clark  v.  Spence, 
10  Watts,  (Penn.)  R.  335,  per  Rogers,  J.  ;    Willard  v.  Bridge,  4  Barb. 
(N.  Y.)  R.  361. 

4  Per  Parke,  B.,  in  Wyld  v.  Pickford,  8  M.  &  Welsb.  R.  443  ;  Youl 
v.  Harbottle,  Peake,  N.  P.  Cas.  49. 

5  Ante,  §  321 ;  and  see  Lubbock  v.  Inglis,  1  Stark.  R.  120. 


CH.  X.]  ACTIONS   AGAINST.  415 

the  act  of  conversion  complete.  The  mere  non-delivery  of 
the  goods  will  not  constitute  a  conversion  on  the  part  of  the 
carrier  ;  but  if  he  has  them  in  his  possession,  and  refuses  to 
give  them  up  on  demand,  it  is  evidence  of  a  conversion. 
But  the  demand  and  refusal  are  merely  evidence  of  a  con- 
version, and  will  not  establish  it  where  it  appears  that  no  con- 
version has  taken  place  ;  as  where  the  goods  in  the  carrier's 
custody  are  proved  to  have  been  lost  through  negligence,  or 
have  been  stolen  ;  and  therefore  a  count  in  trover  will  not  be 
supported  in  such  cases,  though  a  count  in  case  will  be.1 
In  Dwight  v.  Brewster,  in  Massachusetts,2  the  declaration 
(which  contained  a  count  in  trover)  was  on  the.  undertaking 
of  the  defendants  (stage-coach  proprietors)  to  carry  for  the 
plaintiffs  a  package  containing  bank  notes,  which  bank  notes 
were  by  the  defendants  lost.  The  Court  held,  that  the  count 
in  trover  was  not  supported,  because  there  was  no  evidence 
of  any  actual  conversion,  or  of  any  demand  and  refusal ; 
that  the  bank  notes  came  lawfully  into  the  possession  of  the 
defendants,  and  that  some  misapplication  of  them,  or  refusal 
to  deliver  them,  must  be  proved  to  entitle  the  plaintiffs  to  re- 
cover on  a  count  in  trover.  The  same  doctrine  was  held  by 
Bronson,  J.,  in  delivering  the  opinion  of  the  Court  in  Haw- 
kins v.  Hoffman,  in  New  York.3 


1  Salk.  R.  655 ;  Bull.  N.  P.  44.     Said  by  Lord  Ellenborough,  "  That 
what  begins  in  contract,  a  non-performance  of  what  the  party  undertakes 
to  do ;  or  a  bare  non-delivery  of  what  he  undertook  to  deliver,  is  not  to  be 
considered  as  of  itself  amounting  to  a  tortious  conversion.     The  principle 
was  recognized  some  time  ago  in  the  K.  B.  in  an  action  against  a  carrier 
for  not  delivering  goods.     If  the  carrier  says  he  has  the  goods  in  his  ware- 
house, and  refuses  to  deliver  them,  that  will  be  evidence  of  a  conversion, 
and  trover  may  be  maintained,  but  not  for  a  bare  non-delivery  without  any 
such  refusal."     Anon.  4  Esp.  R.    157  ;    and   see  Attersol  ».  Bryant,  1 
Campb.  R.  409,  and  Opinion  of  Lord  Kenyon  in  Youl  v.  Harbottle,  vb. 
sup. ;  and  Ross  v.  Johnson,  5  Burr.  R.  2825. 

2  Dwight  v.  Brewster,  1  Pick.  (Mass.)  R.  50. 

3  Hawkins  v.  Hoffman,  6  Hill,  (N.  Y.)  R.  588.     And  see  also  Moses 
v.  Norris,  4  N.  Hamp.  R.  304  ;  Graves  v.  Ticknor,  6  Ib.  537 ;  Beardslee 
v.  Richardson,  11  Wend.  (N.  Y.)  R.  25.     And  see  ante,  §  38,  63. 


416 


LAW   OF   CARRIERS. 


6.  Action  of  Assumpsit. 


[CH.  x. 


§  434,  The  action  of  assumpsit  is  the  well  known  and  a 
common  remedy  for  the  breach  of  a  contract  not  under  seal ; 
and  it  not  only  lies  upon  all  express  contracts  not  under  seal, 
but  also  in  all  cases  where  the  law  implies  a  contract. 
When  a  person  undertakes  any  office,  employment,  trust,  or 
duty,  he  thereby,  in  contemplation  of  law,  impliedly  con- 
tracts with  those  who  employ  him,  to  perform  that  with 
which  he  is  intrusted,  with  integrity,  diligence,  and  skill ; 
and  if  he  fails  to  do  so,  it  is  a  breach  of  contract  for  which 
the  party  may  have  his  remedy,  in  most  cases  by  action  of 
assumpsit  as  well  as  by  action  on  the  case.  If,  for  instance, 
through  any  gross  and  culpable  negligence  of  an  attorney, 
his  client  be  damnified,  the  client  may  have  his  remedy,  by 
action  of  assumpsit  or  upon  the  case.  So  if  a  common  inn- 
keeper allow  the  goods  of  his  guests  to  be  stolen,  or  a  farrier 
lame  a  horse  in  the  shoeing  of  him ;  and  so  if  a  common 
carrier  or  bargemaster  lose  or  injure  goods  given  to  him  to 
carry.  In  all  these  cases  of  implied  promises,  they  are  in 
law  treated  exactly  as  if  they  were  express  promises  ;  and 
the  declaration  states  the  promise  exactly  as  the  law  implies 
it.1  But  assumpsit  does  not  lie  where  there  is  no  certain 
duty  or  contract  express  or  implied  ;  and  where  there  is  an 
implied  promise,  an  express  promise  different  from  the  im- 
plied one,  cannot  be  stated  in  the  declaration,  unless  there 
be  some  other  consideration  to  support  it.2 

§  435.  By  considering  the  transaction  between  a  carrier 
and  his  employer  as  constituting  a  contract  between  the 
parties,  and  by  adopting  accordingly  the  action  of  assumpsit, 
the  plaintiff  has  the  advantage  of  joining  the  common  money 


1  1  Arch.  N.  P.  40. 

2  1  Steph.  N.  P.  238 ;  1  Arch.  N.  P.  41 ;  Hopkins  v.  Logan,  5  M. 
&  Welsh.  R.  241. 


CH.  X.]  ACTIONS  AGAINST.  —  ASSUMPSIT.  417 

counts,  if  he  has  other  causes  of  action  to  which  they  are 
applicable.1     Another  advantage  of  the  action  of  assumpsit 


1  1  Chitt.  PI.  115,  418.  The  following  is  Mr.  Chitty's  form  of  declara- 
tion against  a  carrier  by  land.  (2  Chitt.  PI.  355,  7th  edit.)  "For  that 
whereas  the  said  defendant,  hefore  and  at  the  time  of  the  making  of  his 
said  promise  and  undertaking  hereinafter  next  mentioned,  was  a  common 
carrier  of  goods  and  chattels  for  hire,  in  and  by  a  certain  wagon,  (or 

'  coach  ')  from  a  certain  place,  to  wit,  from to  a  certain  other  place, 

to  wit,  to ,  to  wit,  at,  &c.  (venue.)     And  the  said  defendant  being 

such  carrier  as  aforesaid,  the  said  plaintiff  heretofore,  to  wit,  on,  &c. 
(day  of  delivery  or  about  it)  at,  &c.  (venue)  aforesaid,  at  the  special  instance 
and  request  of  the  said  defendant,  caused  to  be  delivered  to  the  said  defend- 
ant, so  being  such  carrier  as  aforesaid,  at,  &c.  (venue)  aforesaid,  certain 
goods  and  chattels,  to  wit,  &c.  [describe  them  minutely  or  as  in  trover]  of 
the  said  plaintiff,  of  great  value,  to  wit,  of —  /.  of  lawful  money  of  Great 
Britain,  to  be  taken  care  of,  and  safely  and  securely  carried  and  conveyed 
by  the  said  defendant,  as  such  carrier  as  aforesaid,  in  and  by  the  said  wagon 
(or  '  coach  ')  from,  &c.  aforesaid,  to,  &c.  aforesaid  (or  merely  say  to,  &c. 
aforesaid,  omitting  the  place  from  whence  they  were  to  be  carried)  and  there, 
to  wit,  at,  &c.  aforesaid,  to  be  safely  and  securely  delivered  by  the  aaid 
defendant  for  the  said  plaintiff;  and  in  consideration  thereof,  and  of  certain 
reward  to  the  said  defendant  in  that  behalf,  he  the  said  defendant  being 
such  carrier  as  aforesaid,  then  and  there,  to  wit,  on  the  day  and  year  afore- 
said, at,  &c.  (venue)  aforesaid,  undertook,  and  faithfully  promised  the  said 
plaintiff  to  take  care  of  the  said  goods  and  chattels,  and  safely  and  securely 
to  carry  and  convey  the  same  in  and  by  the  said  wagon,  (or  'coach  ')  from, 
&c.  aforesaid,  to  &c.  aforesaid,  (or  to,  &c.  aforesaid)  and  there,  to  wit,  at, 
&c.  aforesaid,  safely  and  securely  to  deliver  the  same  for  the  said  plaintiff. 
And  although  the  said  defendant,  as  such  carrier  as  aforesaid,  then  and 
there  had  and  received  the  goods  and  chattels  for  the  purpose  aforesaid, 
yet  the  said  defendant,  not  regarding  his  duty  as  such  carrier,  nor  his  said 
promise  and  undertaking  so  made  as  aforesaid,  but  contriving  and  fraudu- 
lently intending,  craftily  and  subtly,  to  deceive  and  injure  the  said  plaintiff 
in  this  behalf,  hath  not  taken  care  of  the  said  goods  and  chattels,  or  safely 
or  securely  carried  or  conveyed  the  same  from,  &c.  aforesaid,  to,  &c. 
aforesaid,  (or  to,  &c.  aforesaid)  nor  hath  there,  to  wit,  at,  &c.  aforesaid, 
safely  or  securely  delivered  the  same  for  the  said  plaintiff;  but  on  the  con- 
trary thereof,  he,  the  said  defendant,  being  such  carrier  as  aforesaid,  so 
carelessly  and  negligently  behaved  and  conducted  himself,  with  respect  to 
the  said  goods  and  chattels  aforesaid,  that  by  and  through  the  mere  care- 
lessness, negligence,  and  improper  conduct  of  the  said  defendant  and  his 
servants  in  this  behalf,  the  said  goods  and  chattels  being  of  the  value 


418  LAW   OF  CARRIERS.  [CH.  X. 

is,  that  it  will  survive  against  the  executor.1  On  the  other 
hand,  the  plaintiff  is  bound  to  sue  all  the  parties  who  are 
jointly  liable,  and  must  prove  that  all  the  defendants  in  the 
action  are  liable,  which  we  have  seen  is  not  so,  if  he  declares 
in  an  action  on  the  case  for  a  tort.  In  declaring  in  the  form 
of  assumpsit,  the  plaintiff  is  also  precluded  from  joining  a 
court  in  trover,  inasmuch  as  counts  upon  a  promise  and 
upon  a  tort  cannot  be  joined.2  But  assumpsit  is  maintain- 
able when  trover  will  lie,  as  where  the  cause  of  action 
consists  in  a  misfeasance,  where,  for  instance,  the  carrier, 
instead  of  conveying  the  parcel  according  to  his  directions, 


aforesaid,  afterwards,  to  wit,  the  day  and  year  aforesaid,  at,  &c.  (venue) 
aforesaid,  became  and  were  wholly  lost  to  the  said  plaintiff,  to  wit,  at,  &c. 
(venue)  aforesaid." 

Then  add  a  general  count  for  not  taking  proper  care  of  the  goods. 
(2  Chitt.  PI.  342,  7th  edit.)  "And  whereas  also,  heretofore,  to  wit,  on, 
&c,  (any  day  while  the  defendant  had  the  goods,  and  before  title  of  declara- 
tion) at,  &c.  (venue)  in  consideration  that  the  said  defendant  at  his  special 
instance  and  request,  then  had  the  care  and  custody  of  divers  goods  and 
chattels  of  the  said  plaintiff,  to  wit,  goods  and  chattels  of  the  like  number, 
quantity,  quality,  description,  and  value,  as  those  in  the  said  first  count 
mentioned,  [or  if  this  be  the  first  count  on  the  subject,  set  out  the  goods  and 
value,}  he  the  said  defendant  undertook,  and  then  and  there  faithfully 
promised  the  said  plaintiff  to  take  due  and  proper  care  thereof,  whilst  the 
said  defendant  so  had  the  care  and  custody  of  the  same  ;  yet  the  said 
defendant,  not  regarding  his  said  promise  and  undertaking,  but  contriving 
and  intending  to  injure  and  defraud  the  said  plaintiff  in  this  behalf,  whilst 
the  said  defendant  so  had  the  care  and  custody  of  the  said  goods  and  chat- 
tels, took  so  little,  and  such  bad  and  improper  care  thereof,  that  the  same, 
afterwards,  to  wit,  on  the  day  and  year  aforesaid,  &c.  (venue)  aforesaid, 
became  and  were  greatly  damaged  and  injured,  and  wholly  lost  to  the  said 
plaintiff." 

[Add  counts  for  money  had  and  received,  and  upon  an  account  stated.'] 

1  1  Chitt.  PI.  116.     Case  will  not  lie  against  an  executor  or  adminis- 
trator of  a  carrier,  because  it  is  in  tort,  and  the  plea  is  "  not  guilty,"  but 
assumpsit,  which  is  another  action  for  the  same  cause,  will  lie.     Per  Lord 
Mansfield,  in  Hambly  v.  Trott,  Cowp.  R.  375.    And  see  2  Greenl.  Ev. 
§  208  ;  Patton  v.  Magrath,  1  Rice,  (S.  C.)  R.  162. 

2  As  was  conceded  in  Corbett  v.  Packington,  6  B.  &  Cress.  R.  268; 
1  Saund.  R. 312  :  1  Chitt.  PI.  156. 


CH.  X.]  ACTIONS  AGAINST.  —  THE  DECLARATION.  419 

transfers  it  to  another  carrier  for  that  purpose,  whereby  the 
parcel  is  lost.1  And  trover  even  will  lie  against  an  executor 
for  chattels  continued  in  specie  in  his  hands,  the  conversion 
being  laid  to  have  been  by  the  executor.2 

7.  Distinctive  Character  of  the  Declaration. 

§  436.  There  has  been  a  diversity  of  opinion  not  only  as 
to  the  proper  remedy  in  particular  cases,  but  as  to  the  dis- 
tinctive feature  in  the  declaration.3  The  general  rule,  as 
we  have  seen,  being  that  in  actions  ex  delicto  the  non-joinder 
of  a  co-defendant  cannot  be  pleaded  in  abatement,  it  has,  in 
England,  been  a  matter  of  doubt,  whether  such  a  plea  would 
be  good  to  a  declaration  framed  in  case,  but  founded  on  con- 
tract;  and  whether  judgment  could,  as  in  actions  founded 
on  tort,  be  given  for  some  defendants  and  against  others.4 
In  Weal  v.  King,6  it  was  held,  that  an  action  on  the  case, 
alleging  a  deceit  by  means  of  a  warranty,  though  laid  in  tort, 
was  founded  on  contract.6 

/§  437.  In  the  case  of  Pozzi  v.  Shipton,7  the  declaration 
contained  no  words  of  contract,  but,  on  the  other  hand,  it 
did  not  expressly  aver  that  the  defendants  were  carriers. 
The  Court  of  King's  Bench,  however,  were  of  opinion,  that 
the  declaration  might  be  read  as  founded  on  the  general 


1  Sleat  v.  Fags,  5  B.  &  Aid.  R.  349. 

2  Hambly  v.  Trott,  Cowp.  R.  373. 

3  See  opinion  of  Gibson,  C.  J.,  in  Smith  v.  Seward,  3  Barr.  (Penn.)  R. 
345;  and  opinion  of  Lord  Ellenborough  in  Govett  v.  Radnidge,  3  East,  R. 
70. 

*  But  now  in  England  (by  stat.  11  Geo.  4,  and  1  Will.  4,  c.  68,  s.  5,) 
the  non-joinder  of  a  co-defendant  in  assumpsil  against  common  carriers,  is 
no  ground  for  pleading  in  abatement.  Brown  on  Part,  to  Actions,  156. 

5  Weall  v.  King,  12  East,  R.  452. 

6  This  decision  is  recognized  by  the  Court  in  Hunt  ».  Wynn,  6  Watts, 
(Penn.)  R.  47. 

7  Pozzi  v.  Shipton,  8  Adol.  &  Ell.  R.  963.] 


420  LAW   OF   CARRIERS.  [ciJ.  X. 

custom  of  the  realm,  and  consequently  that  a  verdict  which 
had  been  obtained  against  one  defendant  and  in  favor  of 
the  other,  was  maintainable.  The  declaration,  which  was 
in  case,  stated,  that  the  plaintiff  delivered  to  the  defendants, 
and  they  accepted  and  received  from  him,  goods,  to  be  taken 
care  of  and  conveyed  by  the  defendants  from  Liverpool  to 
Birmingham,  and  there  delivered  to  A.,  for  the  plaintiff,  for 
reasonable  reward,  to  the  defendants  in  that  behalf;  and 
thereupon  it  became  the  duty  of  the  defendants  to  take  due 
care  of  such  goods  while  they  so  had  the  charge  thereof,  for 
the  purpose  aforesaid  ;  and  to  take  due  and  reasonable  care 
in  and  about  the  conveyance,  and  delivery  thereof  as  afore- 
said ;  yet  the  defendants,  not  regarding  their  duty,  &c.,  did 
not  nor  would  lake  due  care,  &c.,  and  that  the  goods  were 
injured  to  the  plaintiff's  damage.  At  the  trial  it  was  proved 
satisfactorily,  that  the  defendant,  against  whom  the  verdict 
was  obtained,  was  a  common  carrier,  and  it  was  not  objected 
at  the  time,  that  proof  of  an  express  contract  was  necessary 
in  order  to  sustain  the  declaration.  Under  these  circum- 
stances, the  Court  of  King's  Bench  refused  to  disturb  the 
verdict,  observing,  that,  as  the  language  of  the  declaration 
was  consistent  with  the  action,  being  founded  on  the  general 
custom,  and  as  there  were  no  words  of  express  contract,  the 
Court,  after  verdict,  was  bound  to  read  it  as  founded  on  the 
custom  ;  and  that  it  was  not  then  necessary  to  say,  whether 
the  want  of  an  express  averment  that  the  defendants  were 
common  carriers  for  hire,  would  have  been  good  on  special 
demurrer. 

§  433.  In  an  action  on  the  case,  in  Connecticut,  alleging 
that  the  defendants,  being  joint  proprietors  of  a  line  of  stage- 
coaches from  Hartford  to  Albany,  undertook,  in  consideration 
of  a  certain  sum  paid  by  the  plaintiff,  to  transport  him  and 
his  baggage  from  the  former  to  the  latter  place,  within  a 
certain  time  specified  ;  and  that  having  received  the  plaintiff 
and  his  baggage  for  that  purpose,  he  detained  the  same  on 
the  road,  and  failed  and  neglected  to  perform  their  under- 


CH.  X.]         ACTIONS   AGAINST.  —  THE  DECLARATION.  421 

taking ;  it  was  held,  that  the  plaintiff  could  not  recover 
against  any  of  the  defendants  without  proving  a  joint 
undertaking  as  alleged  against  all.  Hosmer,  C.  J.,  who 
delivered  the  judgment  of  the  Court,  refers  to  the  estab- 
lished and  obvious  distinction  between  an  action  founded 
on  contract  and  one  founded  in  tort ;  and  said  that  the 
plaintiff's  action  was  founded  on  contract  and  the  non- 
perforrnance,  without  the  allegation  of  misfeasance  or  mal- 
feasance ;  therefore,  the  plaintiff  must,  in  every  essential 
particular,  prove  the  contract  as  he  had  alleged  it.1  In  the 
case  of  Patton  v.  Magrath,  in  South  Carolina,2  the  Court 
considered,  that  whether  the  declaration  be  considered  as 
strictly  a  declaration  in  assumpsit,  or  as  a  declaration  in  case 
ex  quasi  contractu,  the  plaintiff  must  sue  all  joint  contracting 
parties,  or  the  defendants  may  plead  in  abatement ;  and  that 
he  must  sue  in  the  same  action  only  the  joint  contractors,  or 
he  will  fail  at  the  trial. 

§  439.  It  has  been  asserted,3  that  the  case  of  Corbett  v. 
Packington,4  has  put  the  law  on  the  subject  of  the  distinctive 
feature  of  the  declaration  on  satisfactory  ground,  by  making 
the  presence  or  absence  of  an  averment  not  of  promise  only, 
but  of  consideration  also,  the  criterion  ;  for  it  is  impossible 
to  conceive  of  a  promise  without  consideration,  any  more 
than  a  consideration  without  a  promise,  as  an  available  cause 
of  action  ;  and  when  a  consideration  is  not  laid,  the  word 
agreed  or  undertook,  or  even  the  more  formal  word  promised, 
must  be  treated  as  no  more  than  inducement  to  the  duty 
imposed  by  the  Common  Law.  In  Smith  v.  Seward,  in 
Pennsylvania,5  it  was  expressly  held,  that  an  averment  of  a 
promise  and  a  consideration,  are  both  essential  to  a  declara- 


1  Walcott  v.  Canfield,  3  Conn.  R.  194. 

2  Patton  v.  Magrath,  1  Rice,  (S.  C.)  R.  162. 

3  Per  Gibson,  C.  J.,  in  Smith  v.  Seward,  3  Barr.  (Perm.)  R.  342. 

4  Corbett  v.  Packington,  6  B.  &  Cress.  R.  268. 

5  Smith  v.  Seward,  ub.  sup. 

36 


LAW   OF   CARRIERS.  [CH.  X. 

tion  in  contract ;  and  that  hence,  a  declaration  averring  an 
undertaking,  in  consideration  that  the  public  should  be  con- 
veyed by  means  of  defendant's  ferry,  and  for  hire,  to  receive 
and  safely  to  convey,  and  that  the  plaintiff  learning  the  said 
offer,  did  use  the  ferry,  and  commit  his  horse  to  defendant,  in 
consideration  of  an  undertaking  to  convey,  was  in  tort. 

8.  As  to  the  Allegations,  8fc.  in  the  Declaration. 

§  440.  Having  endeavored  to  point  out  the  difference  be- 
tween the  two  modes  of  proceeding  against  carriers  on  their 
liability  to  their  employers,  by  action  on  the  case  aud  by  the 
action  of  assurnpsit,  and  to  show  the  advantages  peculiar  to 
each  ;  and  having  given  the  form  of  declaring  in  each  ; J  it 
is  now  proposed  to  consider  more  in  detail  the  allegations, 
&c.  in  declaring  in  each.  It  is  laid  down,  that  though  the 
remedy  by  action  on  the  case  against  carriers  is  on  some 
accounts  preferable  to  assumpsit,  yet  the  form  of  action  does 
not  materially  affect  the  evidence  necessary  to  maintain  it.2 
The  declaration  in  case  must  correctly  state  the  contract,  or 
the  particular  duty  or  consideration  from  which  the  liability 
results,  and  on  which  it  is  founded  ;  and  a  variance  in  the 
description  of  the  contract,  or  the  particular  duty  or  consid- 
eration from  which  the  liability  results,  and  on  which  it  is 
founded,  though  in  an  action  ex  delicto,  may  be  as  fatal,  as 
in  an  action  in  form  ex  contractu?  As  has  been  affirmed  by 
a  learned  Judge,  "  in  an  action  on  a  tort  arising  out  of  a 
contract,  the  statement  of  the  contract  is  often  as  material  as 
in  an  action  on  the  contract ;  and  in  either  form  of  action,  if 
the  variance  is  on  a  point  which  goes  to  the  very  essence  of  the 


1  Form  in  action  on  the  case,  ante,  §  429,  n.  3  ;  Form  in  the  action  of 
assumpsit,  ante,  §  435,  n.  3. 

2  2  Greenl.  Ev.  $  208  ;  1  Chitt.  PI.  161,  162,  7th  edit.  [125,  126.] 

3  2  Greenl.  Ev.  §  208  ;  2  Steph.  N.  P.  992  ;  Max  v.  Roberts,  12  East, 
R.  89 ;  Govett  v.  Radnidge,  3  Ib    /O  ;  Bretherlon  v.  Wood,  5  B.  &  Bing. 
R.  54. 


CH.  X.]         ACTIONS  AGAINST.  —  THE   DECLARATION.  423 

action,  it  is  fatal."  l  As  the  inducement  in  declarations  ex 
delicto  relates  to  material  matter,  there  will  be  a  fatal  vari- 
ance, if,  instead  of  relying  on  the  general  statement,  the 
plaintiff  enters  upon  a  detailed  statement,  and  there  be  a  mis- 
description.  As  in  an  action  for  slander  of  a  physician,  even 
if  it  be  not  necessary  in  general  for  the  party  to  show,  that 
he  has  regularly  taken  his  degree,  it  is  necessary  if  the  party 
allege  in  his  declaration,  that  he  had  duly  taken  the  degree  of 
doctor  of  physic.2 

§  44'1.  But  in  torts,  the  plaintiff  may  prove  a  part  of  his 
charge  if  the  averment  be  divisible,  and  there  be  enough 
proved  to  support  his  case.  In  a  declaration,  for  instance, 
for  slandering  the  plaintiff  in  two  trades  mentioned  in  the 
declaration,  should  there  be  proof  of  one  trade  only,  the 
proof  will  support  the  declaration  if  the  words  apply  to  the 
latter  trade.3  In  respect  to  such  divisibility  there  is,  how- 
ever, a  material  distinction  between  the  statement  of  torts 
and  of  special  contracts ;  for  in  declaring  upon  the  latter  the 
contract  must  be  stated  correctly,  and  if  the  evidence  differs 
from  the  statement,  the  whole  foundation  of  the  action  fails, 
because  the  action  is  entire  in  its  nature,  and  must  be  proved 
as  laid.*  A  trivial  variation  is  fatal,  inasmuch  as  the  contract 
given  in  evidence  does  not  appear  to  be  that  on  which  the 
plaintiff  declares  ; 5  and,  therefore,  where  the  declaration  is 
on  a  promise  to  do  several  things,  and  one  only  is  proved, 
there  is  a  fatal  variance.  In  an  action  of  assumpsit  against 
common  carriers,  the  first  count  in  the  declaration  alleged, 
that  the  defendants  undertook  and  promised  the  plaintiff  to 
carry  and  convey  securely,  by  their  coaches  and  railroad 
cars,  a  trunk  containing  certain  goods,  8fc.  and  bank-bills ; 

1  Per  Bosanquet,  J.,  in  Ireland  v.  Johnson,  1  Bing.  New  R.  162. 
a'Moises  v.  Thornton,  8  T.  R.  308  ;  and  Bee*  Rex  v.  Everett,  8  B.  & 
Cress.  R.  114. 

3  Figgins  v.  Cogswell,  3  M.  &  Sel.  R.  369. 

4  1  Chitt.  PI.  334,  5th  edit. 

5  Bull.  N.  P.  145 ;  King  u.  Pippet,  1  T.  R.  240. 


424  LAW   OF   CARRIERS.  [CH.  X. 

but  that  they  so  carelessly  conducted  that  the  trunk  and  its 
contents  were  lost.  The  defendants  moved  a  nonsuit  on  the 
ground,  that  there  was  a  variance  between  the  contract  as 
stated  in  the  declaration,  and  as  proved  on  the  trial ;  that  the 
contract,  as  set  forth,  was  to  carry  the  trunk  and  money  of 
the  plaintiff,  whereas  it  was  proved  that  the  trunk  belonged 
to  one  M.,  a  stranger.  The  Court  held,  by  Covven,  J.,  that 
the  proof  at  most  was  of  a  contract  with  the  plaintiff  to  carry 
the  money  only ;  and  that  the  declaration  failed  in  describing 
correctly  a  special  executory  contract,  wherein  great  exact- 
ness is  always  demanded.1  So  to  allege  a  consideration 
for  a  promise,  in  addition  to  the  true  consideration,  moving 
thereto,  not  supported  by  the  proof,  will  be  cause  of  nonsuit.2 
The  circumstance,  that  if  assumpsit  be  adopted,  the  contract 
or  promise  must  be  formally  stated  in  the  declaration,  and 
that  in  case  it  is  otherwise,  constitutes  the  principal  difference 
between  the  two  forms  of  action.3 

§  442.  If  the  declaration  in  assumpsit  state  an  absolute 
contract,  and  the  proof  is  of  a  contract  in  the  alternative,  the 
plaintiff  cannot  recover,  though  he  may  have  determined  his 
option.4  Where  it  appears  by  the  terms  of  the  contract,  for 
the  breach  of  which  the  action  is  brought,  it  was  at  the  option 
of  the  defendant  to  deliver  this  or  that  quantity  of  goods  at 
one  time,  and  the  remainder  at  another,  it  ought  to  be  thus 
stated.5  Where  a  contract  was  in  the  alternative  to  transport 
fifteen  or  twenty  tons  of  marble  from  one  place  to  another,  it 

1  Weed  v.  Schenectady  and  Saratoga  Railroad  Co.  19  Wend.  (N.  Y.) 
R.  534.     As  no  injustice  had  been  done  by  the  mere  formal  addition  of 
"a  trunk"  in  the  declaration,  the  Court  had  no  doubt,  by  an  equitable 
construction  of  the  law  of  New  York  in  respect  to  amendment,  of  their 
power  to  allow  an  amendment,  by  striking  the  "  trunk  "  from  the  decla- 
ration. « 

2  Stone  v.  Knowlton,  3  Wend.  (N.  Y.)  R.  374. 

3  Judin  v.  Samuel,  6  East,  R.  333. 

4  See  1  Chitt.  PI.  309  ;  Yelv.  R.  76,  note  by  Metcalf ;  Hilt  v.  Camp- 
bell, 6  Greenl.  (Me.)  R.  109. 

5  Penny  v.  Porter,  2  East,  R.  2  ;  and  see  Yate  v.  Willan,  Ib.  134. 


CH.  X.]  ACTIONS   AGAINST.  —  THE    DECLARATION.  425 

must  be  stated  in  the  declaration  according  to  the  terms  of  it ; 
and  if  it  be  stated  as  an  absolute  contract,  for  the  transporta- 
tion of  twenty  tons,  and  not  fifteen  or  twenty  tons,  the  vari- 
ance is  fatal.1 

§  443.  In  an  action  of  special  assumpsit  against  the  defend- 
ant, as  the  master  of  a  ship,  for  not  safely  conveying  goods 
to  a  foreign  port,  consigned  to  the  plaintiffs,  evidence  that  the 
goods  were  seized  in  another  port  by  the  government,  coupled 
with  a  letter  of  the  defendant's,  in  which  he  acknowledged 
that  he  was  accountable  for  the  goods,  is  sufficient  to  warrant 
the  jury  to  find  for  the  plaintiffs,  without  any  further  proof  of 
the  cause  of  seizure.  For  the  defendant,  it  was,  however, 
objected,  that  there  was  a  variance  between  the  bill  of  lading 
and  the  declaration,  and  between  the  undertaking  as  laid  in 
the  first  two  counts  and  the  breach  assigned,  the  undertaking 
being  laid  to  deliver  for  the  plaintiffs  at  the  island  of  Batavia, 
and  the  breach  being  that  the  defendant  did  not  deliver  to 
the  plaintiffs.  But  C.  J.  Abbott  said  he  would  not  nonsuit 
the  plaintiffs  upon  this  objection.2 

§  444.  A  declaration  upon  a  promise  alleging,  that  the 
defendant  undertook  to  deliver  a  parcel  of  goods  for  the 
plaintiff,  is  disproved  by  evidence  of  a  special  agreement  to 
deliver  them  to  the  bearer  of  a  receipt  given  for  the  goods  at 
the  time  of  the  delivery.  But  if  the  declaration  had  been 
in  trover,  the  plaintiff  would  have  been  entitled  to  recover, 
since  the  delivery  of  the  goods  to  another  amounted  to  a 
conversion.3 

§  445.  The  declaration  may  be  on  an  executed  considera- 
tion, in  consideration  of  plaintiff  having  delivered  the  goods.4 


1  Stone  ».  Knowlton,  3  Wend.  (N.  Y.)  374. 

2  Cullen  v.  M'Alpine,  2  Stark.  R.  552. 

3  Samuel  v.  Darch,  2  Stark.  R.  60. 

4  2  Steph.  N.  P.  991. 

36* 


426  LAW    OP   CAKBIERS.  [CH.  X. 

Thus,  where  a  count  in  a  declaration  against  a  carrier  by 
water,  alleged,  that  in  consideration  that  the  plaintiff,  at  the 
request  of  the  defendant,  had  caused  to  be  shipped  on  board 
the  defendant's  vessel  a  quantity  of  wheat,  to  be  carried  to  a 
certain  place  for  freight,  to  be  therefore  paid  to  the  defendant, 
he  undertook  to  carry  the  wheat  safely,  and  deliver  it  for  the 
plaintiff  on  a  given  day  ;  but  it  appeared,  that  the  defendant's 
undertaking  to  carry,  was  made  before  the  whole  of  the  wheat 
had  been  shipped  on  board  the  vessel ;  it  was  held,  that  the 
count  might  be  supported,  although  it  was  objected,  that  the 
consideration  for  the  promise  was  executory.1 

§  446.  It  is  enough  to  allege  in  the  declaration  against  a 
carrier  for  the  loss  of  goods,  that  the  consideration  of  their 
conveyance  was  of  a  certain  reward,  or  of  reasonable  hire 
and  reward,  without  stating  what  reward.2  In  the  precedent 
in  Dalston  v.  Janson,3  the  allegation  is  only  that  the  carrier 
was  to  carry  "  for  a  reward  to  be  therefore  had."  In  Clarke 
v.  Gray,4  this  general  form  of  alleging  the  consideration  in 
declaring  in  actions  against  carriers  was  sustained,  after 
much  deliberation,  though  it  was  proved  that  the  carrier  had 
limited  his  responsibility  by  a  notice  to  a  certain  sum,  unless 
goods  above  that  value  were  entered  and  paid  for  accordingly. 
The  declaration  in  this  case  was  in  assumpsit  in  the  usual 
form  ;  and  it  was  held,  that  the  notice  in  question  amounted 
only  to  a  limitation  of  damages,  after  a  right  to  them  had 
accrued  by  a  breach  of  the  contract,  and  was  proper  to  be 
given  in  evidence  to  the  jury  in  reduction  of  damages  ;  but 
that  it  formed  no  part  or  qualification  of  the  original  contract 
for  carriage  ;  and  that,  consequently,  it  was  not  necessary  to 
be  shown  to  the  Court,  in  the  first  instance,  on  the  face  of 


1  Streeter  v.  Horlock,  7  Moore,  R.  283 ;  1  Bing.  R.  34. 

2  2  Saund.  R.  74  a  ;  2  Chitt.  PL  (7th  ed.)  337,  n.  (c.)  ;  2  Steph.  N.  P. 
994. 

3  Dalston  v.  Janson,  4  Ld.  Raym.  R.  79. 

4  Clarke  v.  Gray,  6  East,  564. 


CH.  X.] 


ACTIONS   AGAINST.  —  THE  DECLARATION. 


427 


the  record.1  But  if  the  provision  be  of  such  a  nature  as  goes 
in  discharge  of  the  liability  of  the  party  under  the  contract 
altogether,  in  case  a  particular  condition  is  not  complied  with> 
as  where  goods  were  not  to  be  accounted  for  at  all,  unless 
properly  entered  and  paid  for  ;  that  will  operate  not  merely 
in  reduction  of  damages,  but  in  bar  of  the  action.2  So  if  the 
carrier  except  his  liability  from  loss  occasioned  by  fire  or  rob- 
bery, it  must  be  stated  in  the  declaration.3  Abbott,  C.  J., 
says  :  —  "  The  result  of  all  the  cases  is,  that  if  the  carrier 
only  limits  his  responsibility,  that  need  not  be  noticed  in 
pleading ;  but  if  a  stipulation  be  made  that  under  circum- 
stances, he  shall  not  be  liable  at  all,  that  must  be  stated."  4 
Declaration  in  case  staled  that  the  defendants  were  proprie- 
tors of  the  Y.  &  N.  M.  Railway  Company,  and  of  certain 
carriages  for  the  conveyance  of  passengers,  cattle,  and  goods 
and  chattels  upon  the  said  railway  for  hire  ;  that  they  re- 
ceived nine  horses  of  the  plaintiff  to  be  safely  and  securely 
carried  in  the  carriages  of  the  defendants  by  the  railway  for 
hire  ;  and  that  thereupon  it  was  the  duty  of  the  defendants 
safely  and  securely  to  carry,  and  convey  and  deliver  the 


1  Lord  Ellenborough  in  this  case  said,  that  a  conflicting  decision  in  Yate 
v.  Willan,  2  East,  R.  128,  could  not  be  supported  in  its  full  extent. 

2  Clay  v.  Willan,  1  H.  Bl.  R.  298.     The  general  doctrine  on  the  sub- 
ject is  stated  by  Lord  Ellenborough  to  be,  that  it  is  sufficient  to  state  in 
the  declaration  so  much  of  any  contract,  consisting  of  several  distinct 
parts,  and  collateral  provisions,  as  containing  the  entire  consideration  for 
the  act,  and  the  entire  act  which  is  to  be  done  in  virtue  of  such  consideration ; 
and  that  the  rest  of  the  contract  which  only  respects  the  liquidation  of 
damages,  after  a  right  to  them  has  accrued  by  a  breach  of  the  contract,  is 
matter  proper  to  be  given  in  evidence  to  the  jury  in  reduction  of  damages, 
but  not  necessary  to  be  shown  to  the  Court  in  the  first  instance  on  the  face 
of  the  record.     Clarke  v.  Gray,  ub.  sup. 

3  Latham  ».  Rutley,  2  B.  &  Cress.  R.  20.     In  this  case  the  action  was 
assumpsit,  that  for  a  certain  hire  and  reward,  the  defendants  undertook  to 
carry  goods  from,  and  deliver  them  safely  at  Dover  ;  and  the  contract 
proved  was,  to  carry  and  deliver  safely  (fire  and  robbery  excepted,)  it  was 
held,  that  this  was  a  variance. 

4  Latham  v.  Rutley,  ub.  sup. 


428  LAW   OP    CARRIERS.  [CH.  X. 

horses  of  the  plaintiff ;  and  then  averred  the  loss  of  one  by 
reason  of  the  insufficiency  of  one  of  the  carriages.  It  ap- 
peared, that  when  the  horses  were  received,  a  ticket  was 
given  to  the  plaintiff  stating  the  amount  paid  by  the  plaintiff 
for  the  carriage  of  the  horses,  and  the  journey  they  were  to 
go,  and  having  at  the  bottom  the  following  memorandum  : 
"  This  ticket  is  issued  subject  to  the  owner's  undertaking  all 
risks  of  conveyance  whatever,  as  the  company  will  not  be 
responsible  for  any  injury  or  damage,  however  caused,  occur- 
ring to  horses  or  carriages,  while  travelling,  or  in  loading  or 
unloading."  It  was  held,  that  the  terms  contained  in  the 
ticket  formed  part  of  the  contract  for  the  carriage  of  the 
horses ;  and  that  the  alleged  duty  of  the  defendants  safely 
and  securely  to  carry  and  convey  the  horses,  did  not  arise 
upon  that  contract.  "  It  may  be,"  said  Lord  Denman,  C. 
J.,  "  that,  notwithstanding  the  terms  of  the  contract,  the 
plaintiff  might  have  alleged,  that  it  was  the  duty  of  the 
defendants  to  have  furnished  proper  and  sufficient  carriages, 
and  that  the  loss  happened  from  a  breach  of  that  duty  ;  but 
the  plaintiff  has  not  so  declared,  but  has  alleged  a  duty  which 
does  not  arise  upon  the  contract,  as  it  appeared  in  evidence."  1 
It  was  said  that  the  stipulations  proved  by  the  defendants  in 
this  case  at  the  trial,  did  not  alter  the  effect  of  the  contract 
stated  in  the  declaration  ;  and  that  notwithstanding  the  stipu- 
lation, the  defendants  were  liable  for  the  accident  which 
happened  to  the  horse  ;  and  Lyon  v.  Mills2  was  cited.  But 
what  was  proved  there  was  only  a  notice,  and  a  general 
notice  ;  but  in  the  case  in  question  the  note  proved  was 
proved  to  contain  the  terms  of  a  special  contract  entered 
into  between  the  plaintiff  and  the  defendants  with  respect  to 
the  acceptance  of  a  particular  kind  of  goods. 

§  447.  If  no  special  executory  contract  is  relied  on,  it  is 


1  Shaw  v.  York  and  North  Midland  Railway  Co.  Queen's  Bench,  1849  ; 
reported  in  Law  Reporter  for  May,  1850,  p.  16. 
3  Lyon  v.  Mills,  5  East,  R.  428. 


CH.  X.]          ACTIONS   AGAINST.  —  THE  DECLARATION.  429 

not  necessary  to  be  minute  in  alleging  the  quantity  or  quality 
of  the  goods  to  be  conveyed  ; l  or,  at  least,  they  may  be 
stated  with  a  less  degree  of  certainty  and  accuracy  than  is 
required  in  an  action  of  detinue  or  of  replevin.2  The  law 
does  not  now,  as  formerly,  require  in  the  action  of  trover 
great  precision  and  certainty  in  the  description  of  the  goods  ; 
and  if  the  description  is  according  to  common  acceptation,  it 
is  sufficient.  Thus,  trover  for  "  a  suit  of  knots  "  has  been 
held  sufficiently  certain  ;  or,  for  "  a  parcel  of  thread,"  with- 
out mentioning  the  quantity  of  it ;  such  allegation  being 
certain  enough  where  damages  only  are  to  be  recovered, 
and  not  the  thing  itself.3  So  the  declaration  against  a  carrier 
for  the  loss  of  goods  need  only  state  the  nature  of  the  goods 
with  a  certainty  of  description  to  a  common  intent ;  and, 
therefore,  a  carrier's  pack  has  been  held  a  sufficient  certain- 
ty ; 4  and  so,  where  the  declaration  was  for  so  many  sets  of 
"  gold  buttons,"  and  a  set  of  "  Turkey  stones  and  garnets  ;  " 
for  to  such  as  are  conversant  with  those  things,  a  set  is  in- 
tended to  be  well  known,  and  in  what  manner  the  precious 
stones  are  usually  placed  in  such  sets.5 

§  448.  In  case  against  a  carrier,  where  the  duty  was  alleged 
to  be,  safely  to  convey  and  deliver,  the  grievance  may  be 
stated  to  be  non-delivery  within  a  reasonable  tinted  The 

1  2  Chitt.  PI.  n.  (d)  to  p.  757,  (7th  edit.) 

2  2  Saund.  R.  74  a. 

3  Ib.  n.  (1),  and  cases  therein  cited. 

4  Jeremy  on  Carr.  123. 

5  Ibid,  referring-  to  Chamberlain  v.  Cooke,  2  Ventr.  R.  78  ;  and  Her- 
bert t>.  Lane,  Style,  R.  370. 

6  Raphael  v.  Pickford,  5  Man.  &  Grang.  R.  551,  and  see  ante,  $  284. 
As  to  the  form  of  the  declaration  in  such  case :  The  declaration  stated, 
that  on  the  1st  of  August,  1842,  the  defendants  were  common  carriers  of 
goods  for  hire  from  London  to  Birmingham,  and  then  proceeded  to  state, 
in  the  usual  form,  (see  ante,  §  429,  n.  3,)  the  delivery  of  the  goods  to  the 
defendants  to  be  carried  for  hire,  and  to  be  delivered,  and  their  duty  safely 
to  carry  and  deliver,  and  then  averred,  "  that  a  reasonable  time  for  the  de- 
fendants' carrying  and  conveying  and  delivering  the  said  goods  as  aforesaid, 


430  LAW   OF   CARRIERS.  [cH.  X. 

pleas  in  the  case  referred  to,  were  first,  "  not  guilty ;  "  sec- 
ondly, "  that  the  plaintiff  did  not  deliver  to  the  defendants, 
nor  did  the  defendants  receive  from  the  plaintiff,  the  goods 
in  the  declaration  mentioned,  to  be  carried  and  delivered  for 
the  plaintiff  by  the  defendants,  modo  et  forma  ;  "  concluding 
to  the  country  ;  and  issue  thereon.  The  jury  returned  a 
verdict  for  the  plaintiff,  and  a  rule  nisi  was  obtained  for 
entering  a  nonsuit.  The  Court,  said  Tindal,  C.  J.,  would 
first  consider  the  allegation  of  the  defendants'  duty,  and 
secondly,  the  allegation  of  the  breach.  He  then  proceeds  to 
say:  —  "It  was  not  denied  that,  if  the  action  had  been 
brought  for  the  total  loss  of  the  parcel,  and  the  evidence 
had  shown  that  it  had  never  been  delivered,  the  plaintiff 
would  have  been  entitled  to  recover  upon  the  declaration  as 
now  framed  ;  and,  if  so,  then  it  necessarily  follows  that  the 
evidence  given  as  to  the  contract  and  duty  of  the  defendants 
would  prove  the  duly  as  laid.  Neither  could  it  be  denied, 
that  if  it  had  been  alleged  to  be  the  defendants'  duty  to 
deliver  within  a  reasonable  time,  the  same  evidence  would 
have  been  sufficient  to  support  that  allegation,  the  duty  to 
deliver  within  a  reasonable  time  being  merely  a  term  in- 
grafted by  legal  implication  upon  a  promise  or  duty  to 


elapsed  before  the  commencement  of  the  suit ;  "  breach,  "  that  the  defend- 
ants, neglecting  their  said  duty  in  that  behalf,  did  not  safely  and  securely 
carry  and  convey  the  said  goods  from  London  to  Birmingham  aforesaid,  or 
at  Birmingham  aforesaid  safely  or  securely  deliver  the  same  for  the  plain- 
tiff, but  then  so  negligently  and  improperly  behaved  and  conducted  them- 
selves, that,  by  and  through  the  negligence,  carelessness,  and  default  of 
the  defendants  in  the  premises,  the  said  goods,  then  and  before  the  com- 
mencement of  the  suit,  became  and  were  and  are  totally  lost  to  the 
plaintiff;  and,  by  reason  of  the  premises,  the  plaintiff  was  before  the 
commencement  of  the  suit  necessarily  detained  in  Birmingham  aforesaid, 
and  obliged  to  waste  and  consume  his  time,  to  wit,  eight  days  from  the 
day  and  year  aforesaid,  in  and  about  attempting  to  procure  the  delivery  to 
him  of  the  said  goods  ;  and  he  thereby  also  lost  great  profits,  to  wit, 
profits  to  the  amount  of  £5,  which  he  would  have  derived  from  the 
delivery  of  the  said  goods,  if  they  had  arrived  in  Birmingham  aforesaid, 
to  divers  persons  to  whom  the  plaintiff  had  sold  the  same,  &c." 


CH.  X.] 


ACTIONS  AGAINST.  —  THE  DECLARATION. 


431 


deliver  generally.  No  valid  objection,  therefore,  exists  to 
the  proof  of  duty  as  alleged.  Whether  such  allegation 
would  have  been  good  upon  special  demurrer,  if  the  only 
breach  had  been  the  non-delivery  within  a  reasonable  time, 
is  another  question,  not  material  to  our  present  inquiry.  But 
it  is  said,  no  such  breach  is  alleged  in  this  declaration,  and 
yet  that  is  the  only  breach  supported  by  the  evidence.  But 
we  think  that  the  breach  in  this  declaration  may  be  read  as, 
in  effect,  stating  that  the  defendants  did  not  within  a  reason- 
able time,  or  at  any  time  afterwards,  deliver  the  goods  to  the 
plaintiff.  And  if  the  breach  had  been  so  in  form,  it  would 
have  been  sufficient  for  the  plaintiff  to  prove  so  much  of  the 
breach  as  would  support  his  right  of  action  ;  and  as  the  onus 
of  proving  the  delivery  would  rest  upon  the  defendants,  unless 
they  proved  a  delivery  within  a  reasonable  time,  the  plain- 
tiff's right  of  action,  and,  consequently,  the  breach  alleged, 
would  be  established.  We  are,  therefore,  of  opinion  that 
the  plaintiff  is  entitled  to  retain  his  verdict." 

§  449.  A  material  variance  between  the  allegation  in  the 
declaration  and  the  evidence  of  the  termini,  is  fatal.  Thus, 
where  the  conveyance  of  goods  was  averred  to  be  from  W., 
in  the  county  of  Middlesex,  to  T.,  in  Essex,  but  the  contract 
proved,  was  for  a  conveyance  of  goods  from  Aldgate  to  the 
City  of  London,  the  variance,  it  was  held,  was  fatal.1  But 
an  averment  of  a  contract  to  carry  goods  from  London  to 
Bath,  is  supported  by  evidence  of  a  contract  to  carry  from 
Westminster  to  Bath  ;  for  the  reason  that  London  must  be 
taken  in  the  enlarged  and  popular  sense  of  a  collective  name, 
and  not  in  a  limited  sense,  applicable  to  what  is  strictly  the 
cily.z  Indeed,  if  the  evidence  as  to  the  termini  supports 
substantially  the  allegation  in  the  declaration,  and  is  not 
inconsistent  with  it,  there  is  no  variance.  As  another 
instance  ;  the  plaintiff  alleged,  that  defendant,  having  agreed 


1  Tucker  v.  Cracklin,  2  Stark.  R.  385. 

2  Beckford  v.  Crutwell,  5  C.  &  Payne,  R.  242. 


432  LAW   OF   CARRIERS.  [CH.  X. 

to  convey  her  safely  by  his  coach  from  London  to  Black- 
heath,  neglected  his  duty,  by  permitting  the  horses  to  move 
on  while  she  was  getting  up,  whereby  she  was  thrown  down 
and  injured  ;  it  was  held  to  be  no  variance,  that  the  defend- 
ant's coach  ran  from  Charing  Cross  to  Blackheath,  and  that 
the  plaintiff  got  up  at  the  Elephant  and  Castle  ;  though  the 
defendant  had  inscribed  on  his  coach,  "  London  to  Black- 
heath."  The  agreement  was  construed  by  the  Court  accord- 
ing to  the  intention  of  the  parties,  by  which  London  was  to 
be  understood,  not  the  city,  strictly  speaking,  but  what  is 
usually  called  London.  If  Westminster,  said  Best,  C.  J.,  be 
included  in  a  place  in  common  parlance  styled  London,  even 
with  its  separate  jurisdiction,  a  fortiori  might  the  Elephant 
and  Castle  be  included,  which  is  nearer  to  the  city  than 
Westminster.1  Again,  as  the  gist  of  the  action  is  the  non- 
delivery at  the  place  the  thing  should  go  to,  the  terminus  a 
quo  is  immaterial.2  In  case  the  declaration  stated,  that  the 
plaintiff  delivered  a  trunk  to  the  defendant  to  be  put  into  a 
coach  at  Chester,  in  the  county  of  Chester,  to  wit,  at,  &c., 
and  safely  to  be  carried  to  Shrewsbury,  and  that,  through 
the  defendant's  negligence,  it  was  lost.  It  appeared  in  evi- 
dence, that  the  trunk  was  delivered  to  the  defendant  at  the 
city  of  Chester,  which  is  a  county  of  itself,  separate  from  the 
county  of  Chester  at  large,  but  within  its  ambit  ;  and  it  was 
held,  that  this  was  not  a  material  variance,  but  that  the  de- 
claration was  supported  by  the  evidence  ;  as  no  evidence  was 
given  of  any  other  place  called  "  Chester."  3 


1  Ditcham  ».  Chivis,  4  Bing.  R.  706. 

2  Woodward  v.  Booth,  7  B.  &  Cress.  R.  301. 

3  Ibid.     This,  and  the  other  cases  which  have  been  cited,  show  that  at 
trifling  variance  as  to  the  description  of  the  termini,  or  one  not  calculated 
to  mislead,  is  immaterial.    The  general  rule,  indeed,  in  respect  to  variance, 
as  was  stated  by  Bayley,  J.,  in  Wicks  v.  Gordon,  2  B.  &  Aid.  R.  335,  is, 
that  a  contract  must  be  stated  according  to  its  legal  operation,  and  if  the 
evidence  proves  it  according  to  that  legal  operation,  it  is  sufficient.     In 
Burbidge  v.  Jakes,  1  B.  &  Full.  R.  225,  the  declaration  stated,  that  the 


CH.  X.]  ACTIONS  AGAINST.  —  PLEADING.  433 

§  450.  An  averment  that  the  defendant  so  "  carelessly 
and  negligently  behaved  and  conducted  himself,"  is  a  suffi- 
cient averment  to  admit  proof  of  gross  negligence ; l  but  an 
allegation  that  the  servants  of  the  defendant  negligently 
"  drove,  conducted,  and  managed  the  coach,"  is  not  sup- 
ported by  proof  of  negligence  in  sending  out  an  insufficient 
coach.2 

9.  Pleading: 

§  451.  The  difference  between  an  action  on  the  case  for 
a  tort  against  carriers,  and  an  action  of  assumpsit,  or  an 
action  directly  on  the  contract,  is  clearly  shown  by  the  plead- 
ings ;  the  general  issue  in  the  former  form  of  action  being 
"  not  guilty,"  and  in  the  latter,  "  non-assumpsit."  3  As  most 
matters  of  defence  against  common  carriers  to  actions  on  the 
case  may  be  given  in  evidence  under  the  general  issue,  it  has 
been  considered  that  it  is  seldom  advisable  to  resort  to  a 
special  plea.4  A  plea  not  consisting  of  matter  of  excuse 
may  amount  to  the  general  issue  without  the  formality  of 
the  words  "  not  guilty."  In  a  declaration  in  case  against  the 


plaintiff  was  possessed  of  a  messuage  at  Sheerness.  At  the  trial,  it  was 
proved  that  the  house  stood  in  the  parish  of  Minster,  which  is  contiguous 
to  Sheerness,  and  usually  goes  under  that  name  ;  the  variance  was  held 
to  be  immaterial.  The  proof,  in  Drewry  v.  Twiss,  4  T.  R.  558,  that  the 
defendant's  boat  run  down  the  plaintiff's  in  the  half-way  reach  in  the 
Thames,  was  held  to  support  an  allegation,  that  the  boat  was  run  down 
in  the  Thames  near  the  half-way  reach  ;  in  an  action  for  negligence. 
Best,  C.  J.,  in  Ditcham  v.  Chivis,  ub.  sup.,  observed,  that  he  "had  no 
objection,  that  it  should  be  said  of  me,  that  I  always  entertained  a  strong 
impression  against  deciding  on  the  ground  of  variance  ;  "  but  he  added, 
"  that  impression  will  never  induce  me  to  overturn  the  law." 

1  Smiih  ».  Home,  8  Taunt.  R.  144.     See  ante,  §  38,  et  seq. 

2  Mayor  v.  Humphries,  1  C.  &  Payne.  R.  251.         • 

3  1  Clutt.  PI.  89,  122  ;  2  Ib.  332;  Zell  v.  Arnold,  2  Penn.  R.  292  ; 
M'Call  v.  Forsyth,  4  Watts  &  S.  (Penn.)  R.  179. 

4  See  opinion  of  Cowen,  J.,  in  Hoyt  v.  Allen,  2  Hill,  (N.  Y.)  R.  322. 

37 


434  LAW   OF   CARRIERS.  [CH.  X. 

Grand  Junction  Railway  Company,1  for  the  loss  of  goods 
delivered  to  them  as  common  carriers,  to  be  safely  and 
securely  carried  and  conveyed  ;  it  was  pleaded  that  the 
delivery  and  receipt  of  the  goods  were  and  happened  after 
4  Will.  4,  c.  IV.,  and  that,  at  the  time  of  such  delivery  the 
plaintiff  became  and  was  a  passenger,  by  the  railway,  and 
that  the  goods  were  delivered  to  be  conveyed  with  him  as 
such  passenger,  and  that  no  part  thereof  were  articles  of 
clothing  of  the  plaintiff.  To  this  plea  there  was  the  general 
replication  de  injuria.  On  special  demurrer,  it  was  held, 
that  the  replication  was  ill,  inasmuch  as  the  plea  did  not 
consist  of  matter  of  excuse,  but  amounted  to  the  general 
issue,  being  an  argumentative  traverse,  that  the  goods  were 
delivered  to  the  defendants  as  common  carriers. 

§  452.  It  is  not  competent,  in  an  action  on  the  case  against 
a  carrier,  under  the  plea  of  "  not  guilty,"  to  set  up  as  a 
defence,  that  the  plaintiff  misrepresented  the  weight  of  the 
goods  which  the  defendant  agreed  to  carry ;  the  plea  ope- 
rating only  as  a  denial  of  the  loss  or  damage,  and  not  of  the 
receipt  of  the  goods  by  the  defendant ;  and  the  defendant 
ought  to  plead  the  misrepresentation  specially,  or  traverse 
the  acceptance  of  the  goods  for  the  purpose  of  being  carried.2 

<§>  453.  The  defendant,  in  the  above  case,  went  to  trial 
with  an  admission  that  certain  goods  were  put  into  the  car- 
rier's van  for  the  purpose  of  being  safely  carried  from  Maid- 
stone  to  London,  and  that  he  received  them  for  that  purpose. 
At  the  trial  the  defendant  attempted  to  set  up  as  a  defence, 
that  the  plaintiff  had  misrepresented  the  weight  of  the  goods, 
and  had  put  into  the  van  a  larger  quantity  of  goods  than  the 
defendant  was  aware  of,  and,  therefore,  that  the  injury  was 
occasioned  by  the  wrongful  act  of  the  plaintiff  himself.  The 
defendant,  it  was  held,  should  have  pleaded  that  he  was 

1  Elwell  v.  Grand  Junction  Railway  Company,  5  M.  &  Welsh.  R.  669. 

2  Webb  v.  Page,  6  Scott,  New  R.  951 ;  6  Man.  &  Grang.  R.  196. 


CH.  X.]  ACTIONS   AGAINST.  —  PLEADING.  435 

induced  by  the  misrepresentation  of  the  plaintiff  to  take  a 
greater  load  than  the  van  could  safely  carry  ;  the  plaintiff 
should  have  notice  of  the  defence  on  which  the  defendant 
means  to  rely.  But  in  an  action  on  the  case  for  negligence, 
where  the  plaintiff  is  contributory  to  the  mischief  of  which 
he  complains,  the  defence,  under  the  plea  of  "  not  guilty,"  is 
admissible.1 

§  454.  A  plea  of  a  notice  that  the  carrier  would  not  be 
responsible,  &c.,  to  a  count  in  trover  in  an  action  on  the 
case  has  been  held  bad,  as  admitting  a  conversion  by  inad- 
vertent delivery.  The  first  count  in  a  declaration  in  an  action 
on  the  case  against  carriers,  stated  a  delivery  to  the  defend- 
ants at  their  request,  of  a  case  containing  certain  maps  to  be 
carried,  and  alleged  a  receipt  thereof  by  the  defendants, 
whereby  it  became  their  duty  to  take  due  and  proper  care 
thereof;  but  that  they  did  not  do  so,  whereby  the  goods 
were  lost.  The  second  count  was  in  trover.  Plea  to  the 
first  count  that,  at  the  time  of  the  delivery  of  the  case  and  its 
contents,  the  defendants  were  common  carriers  for  hire,  and 
then  gave  notice  to  the  plaintiff,  who  then  had  notice  and 
knowledge,  that  the  defendants  would  not  be  responsible  for 
the  loss  of,  or  damage  done  to,  certain  goods  and  chattels, 
delivered  to  them  for  the  purpose  of  carriage,  and  amongst 
others,  maps  in  packages  or  otherwise,  unless  the  same  were 
insured  according  to  their  value,  and  paid  for  at  the  time  of 
delivery;  that  the  said  case  was  the  package  «in  which  the 
said  maps  were  contained  ;  that  they  received  the  case  and 
maps  to  be  carried  as  aforesaid,  upon  the  terms  and  condi- 
tions of  the  said  notice,  and  upon  no  other  terms  whatsoever, 
of  which  the  plaintiffs  at  the  time  of  the  delivery  had  notice, 
and  that  the  maps  at  the  time  of  the  delivery  were  not  insured 
according  to  their  value,  or  paid  for.  To  the  count  in  trover 
there  was  a  similar  plea,  alleging  the  conversion  to  have  been 

1  Holding  v.  Liverpool  Gas  Co.  15  Law  Journ.  (N.  S.)  301,  and  10 
Jur.  883. 


436  LAW   OP   CARRIERS.  [CH.  X. 

by  a  mis-delivery,  through  mistake  and  inadvertence.  On 
special  demurrer  to  both  pleas,  it  was  held,  first,  that  the 
action  being  founded  on  a  breach  of  duty  ex  contractu,  the 
allegation  in  the  pleas  of  a  special  contract  was  sufficient ; 
and  that,  as  the  defendants  accepted  the  goods  only  on  the 
terms  of  the  notice,  a  special  averment  of  the  plaintiff's  con- 
sent was  unnecessary.  Secondly,  that  the  third  plea  was  not 
an  argumentative  traverse  of  the  facts  in  the  declaration,  from 
which  the  breach  of  duty  was  implied.  Thirdly,  that  as  the 
declaration  might  apply  to  any  kind  of  negligence,  it  was  not 
necessary  to  allege  in  the  third  plea,  that  the  loss  was  occa- 
sioned by  such  negligence  as  the  defendants  were  not  respon- 
sible for  ;  and  that  if  the  defendants  had  committed  negli- 
gence for  which  they  were  liable,  notwithstanding  their  notice, 
the  plaintiff  should  have  now  assigned.  Fourthly,  that  the 
case  was  not  separable  from  the  maps.  Fifthly,  that  the  plea 
to  the  count  in  trover  could  not  be  supported,  inasmuch  as  it 
admitted  a  conversion  by  inadvertent  delivery,  and  did  not 
show  that  the  inadvertence  was  such  as  was  protected  by  the 
notice.  "  There  is  a  difficulty,"  said  Parke,  B.,  "  in  support- 
ing that  plea,  on  the  construction  which  we  think  ought  to  be 
put  on  the  terms  of  the  notice  on  which  the  goods  were  re- 
ceived, for  the  plea  admits  a  conversion  by  inadvertent  deliv- 
ery ;  and  does  not  excuse  that,  since  the  carrier  is  not  by 
such  notice  made  irresponsible  for  every  mistake  or  inadvert- 
ent delivery,  but  only  for  such  as  were  made  without  negli- 
gence, whether  gross  or  ordinary,  and  a  delivery  may  be 
even  grossly  negligent,  which  is  inadvertent.1 

§  455.  In  actions  of  assumpsit,  against  carriers  and  all  other 
bailees  for  not  delivering  or  not  keeping  goods  safe,  or  not 
returning  them  on  request,  the  plea  of  "  non-assumpsit "  will 
operate  as  a  denial  of  any  contract  to  the  effect  alleged  in  the 
declaration,  and  of  "  such  bailment  as  would  raise  a  promis 
in  law  to  the  effect  alleged  in  the  declaration.  In  Dale  1 

i  Wyld  v.  Pickford,  8  M.  &  Welsh.  R.  443. 


CH.  X.]  ACTIONS  AGAINST. — PLEADING.  437 

Hall,1  the  declaration,  which  was  against  common  carriers  by 
sea,  was  founded  in  assumpsit,  to  which  there  was  the  plea  of 
"non-assumpsit." 

§  456.  The  fact  in  issue  under  the  plea  of  "  non-assump- 
sit," is  whether  any  such  contract  as  alleged  was  made ;  and 
the  plaintiff  must  prove  that  it  was,  by  showing  that  the 
defendant  made  it  himself,  or,  if  the  captain  of  a  vessel  made 
it,  that  he  was  the  defendant's  agent.  A  declaration  in, 
assumpsit  stated,  that  the  defendants  were  the  owners  of  a 
vessel  lying  in  a  certain  river,  and  bound  to  Liverpool ;  that 
the  plaintiff  caused  to  be  shipped  on  board  a  quantity  of 
potatoes,  to  be  safely  carried  by  the  defendants,  as  owners  of 
the  said  vessel,  to  Liverpool ;  and  in  consideration  thereof, 
and  of  a  certain  freight,  the  defendants  promised  the  plaintiff 
to  take  proper  care  and  safely  carry  the  said  goods  as  with  a 
breach,  that  through  the  defendants'  negligence,  they  were 
damaged.  The  ownership  of  the  defendants,  it  was  held, 
was  not  admitted  by  the  plea  of  "  non-assumpserunt."  2  In 
Patton  v.  Magrath  et  al.,  in  South  Carolina,3  (action  of 
assumpsit,)  the  declaration  counted  upon  a  joint  contract  by 
the  defendants  to  carry  fourteen  bales  of  cotton  from  Ham- 
burgh to  Charleston,  in  a  steamboat,  of  which  the  defendant 
Magrath  was  owner,  and  the  other  defendant  Brooks,  master  ; 
and  alleged  a  loss  of  the  cotton  by  negligence.  The  evi- 
dence of  the  contract  was  a  bill  of  lading,  signed  by  the  said 
Brooks,  the  master,  only.  It  was  held,  that  the  contract  was 
several,  and  that  the  defendants  were  improperly  joined. 

§  457.  In  assumpsit  against  the  defendant  as  a  common 
carrier  to  recover  the  value  of  goods  delivered  to  him,  to  be 
taken  care  of,  and  to  be  safely  delivered  by  him,  as  such 
carrier,  in  his  cart,  from  N.  to  B.,  and  there  safely  to  be 


1  Dale  v.  Hall,  1  Wils.  R.  282. 

2  Bennion  u.  Davison,  3  M.  &  Welsh.  R.  179. 

3  Patton  v.  Magrath  et  al.,  1  Rice,  (S.  C.)  R.  162. 

37* 


438  LAW    OF    CARRIERS.  [CH.  X. 

delivered  by  him  to  the  plaintiff,  but  which  by  negligence 
were  lost ;  it  was  pleaded,  that  when  the  defendant  received 
the  goods,  an  express  condition  and  agreement  was  made 
between  him  and  the  plaintiff,  that  the  plaintiff  should  accom- 
pany the  cart,  and  watch  and  protect  the  goods  from  being 
lost  or  stolen,  but  that  he  neglected  and  refused  so  to  do, 
and  by  reason  whereof,  and  not  by  any  negligence  of  the 
defendant,  the  goods  were  lost.  It  was  held,  that  this  plea 
was  bad  on  special  demurrer,  as  amounting  to  the  general 
issue.1 

§  458.  To  a  declaration  on  a  contract,  by  a  bill  of  lading, 
by  the  master  of  a  vessel,  to  convey  goods  from  Dublin  to 
London,  and  to  deliver  the  same  at  the  port  of  London  to 
the  plaintiff  or  his  assigns,  a  plea,  that  after  the  arrival  of  the 
vessel  at  London,  the  defendant  caused  the  goods  to  be 
deposited  on  a  wharf,  there  to  remain  until  they  could  be 
delivered  to  the  plaintiff,  the  wharf  being  a  place  where 
goods  from  Dublin  were  accustomed  to  be  landed,  and  fit 
and  proper  for  such  purposes,  and  that  before  a  reasonable 
time  for  delivery  elapsed,  they  were  destroyed  by  a  fire 
which  broke  out  there  by  accident,  was  held  ill.  The  defend- 
ants were  responsible  both  for  taking  care  of  the  goods  at  the 
wharf,  and  for  carrying  the  goods  from  the  wharf ;  inasmuch 
as  both  these  duties  formed  a  part  of  the  same  express  con- 
tract, and  are  paid  for  by  the  same  reward  ;  and  the  master, 
during  the  whole  of  the  time  while  the  goods  are  in  his  pos- 
session, is  under  the  obligation  of  a  common  carrier.  It  is, 
therefore,  obvious,  the  plea  in  question  could  furnish  no  answer 
to  the  loss  of  the  goods  by  fire  at  the  wharf ;  a  common  car- 
rier by  the  well  known  rule  of  law,  being  liable  for  every 
loss  (not  specially  excepted)  except  the  act  of  God  and  the 
public  enemy.2 


1  Brind  v.  Dale,  2  M.  &  Welsh.  775. 

2  Gatliffe  u.  Bourne,  4  Bing.  New  R.  314,  and  see  the  case  cited  more 
fully,  ante,  §  299. 


CH.  X.] 


ACTIONS   AGAINST.  —  EVIDENCE. 


439 


§  459.  In  assumpsit  upon  an  undertaking  to  carry  goods 
in  the  defendant's  ship  to  Canton,  and  to  deliver  them  to  the 
plaintiff's  agent  there,  it  was  pleaded,  that  the  ship  proceeded 
near  the  port  of  Canton,  but  was  prevented  by  the  chief 
superintendent  of  trade,  and  the  commander  of  the  naval 
forces  there,  from  entering  that  port.  This  plea,  on  special 
demurrer,  was  held  bad,  for  not  sufficiently  disclosing  that 
those  officers  had  authority  to  act  in  the  manner  alleged  ; 
the  authority  should  have  been  stated  on  the  face  of  the 
plea.1 

§  460.  Whether  the  form  of  action  against  carriers  be  con- 
sidered as  founded  in  contract  or  in  tort,  the  remedy  by  action 
on  the  case  or  assumpsit,  still  falls  within  the  general  class  of 
actions,  which,  in  the  statute  of  limitations,  are  called  "  actions 
upon  the  case,"  and  must,  therefore,  be  prosecuted  within  the 
period  prescribed  from  the  time  the  cause  of  action  accrued.2 
The  pleas  of  the  statute  in  assumpsit  are  non  assumpsit  infra 
sex  annos,  and  actio  non  accrevit  infra,  &c.  ;  the  latter  being 
considered  the  preferable  mode  of  pleading  the  statute  in 
assumpsit ;  as  it  also  is  to  be  preferred  to  the  plea  of  "  not 
guilty  within  six  years,"  if  the  action  is  an  action  on  the 
case  for  a  tort ;  as  the  action  may  be  for  the  consequences  of 
the  act  originating  the  tort.  Although  it  may  be  held,  that 
the  cause  of  action  arises  immediately  on  the  default,  yet 
there  may  be  sometimes  an  uncertainty  in  respect  to  the  pre- 
cise time  at  which  the  default  should  be  fixed. 

10.  Evidence. 

§  461.  We  have  seen,  that  in  an  action  against  carriers  for 
negligence  or  improper  conduct,  in  respect  of  the  carriage  of 
goods,  the  declaration  is  founded  in  tort  for  a  breach  of  duty, 
or  in  assumpsit  for  breach  of  contract ;  and  it  is  necessary  to 

1  Evans  v.  Hutton,  4  M.  &  Grang.  R.  954. 

2  Jeremy  on  Carr.  133  ;  Angell  on  Limit.  73. 


440  LAW  OF   CASHIERS.  [cH.  X. 

prove  in  either  case,  1st,  a  contract  implied  or  expressed ; 
2dly,  the  delivery  of  the  goods ; 1  and  3dly,  the  defendant's 
breach  of  duty  or  promise.2 

§  462.  First,  the  action  is  founded  either  on  an  implied 
contract,  or  upon  an  express  and  special  contract.  It  has 
already  appeared,  that  where  the  latter  sort  of  contract  exists, 
it  must  be  relied  on  and  proved,  as  it  cannot  be  implied.3  It 
is  usual  for  the  plaintiff  to  rely  on  an  implied  contract,  when 
by  evidence  it  appears  that  the  defendant  is  a  common  carrier, 
as  alleged  in  the  declaration  ; 4  for  if  he  is  a  common  carrier, 
the  law  supplies  the  proof  of  the  contract  so  far  as  respects 
the  extent  and  degree  of  his  liability.5  As  to  the  evidence 
necessary  to  show  that  a  person  is  a  common  carrier,  there  is 
no  occasion  to  recapitulate  the  much  that  has  already  been 
offered  in  a  former  chapter,  in  respect  to  what  must  appear, 
in  order  to  subject  a  person  to  the  responsibility  of  one  acting 
in  that  capacity.6 

§  463.  Evidence,  that  at  the  door  of  a  booking-office,  there 
is  a  board  on  which  is  painted,  "  conveyances  to  all  parts  of 
the  world,"  and  a  list  of  names  and  places,  is  not  sufficient 
proof,  of  itself,  that  the  owner  of  the  office  is  a  common 
carrier,  so  as  to  charge  him  for  the  loss  of  a  box  which  was 
booked  there  ;  and  he  cannot  be  declared  against  as  carrier. 
Lord  Tenterden,  C.  J.,  said  :  "  We  know  there  are  in  this 
town  (London)  booking-offices  that  do  not  belong  to  the 
carriers ;  and  I  am  of  opinion,  that  you  cannot  convert  the 
keeper  of  a  booking-office  into  a  carrier."  The  plaintiff 
wished  to  go  on  the  count,  he  had  in  his  declaration  in 
trover,  but  it  being  proved,  on  the  part  of  the  booking-office 
keeper,  that  his  porter  delivered  the  box  in  question  in  due 
course  to  one  H.,  who  was  a  Windsor  carrier,  the  plaintiff 


1  See  ante,  Chap.  V.  4  See  ante,  §  429. 

2  2  Stark.  Ev.  331.  5  2  Greenl.  Ev.  210. 

3  Ante,  §  441,  et  seq.  6  Ante,  Chap.  IV. 


CH.  X.]  ACTIONS   AGAINST.  —  EVIDENCE.  441 

was  non-suiled.1  But  if  it  be  proved,  that  a  carrier  gave 
directions  to  have  goods  sent  to  a  particular  booking-office, 
he  is  then  responsible  for  the  negligence  of  the  office  keeper.2 

§  464.  If  the  defendant  is  not  a  common  carrier,  it  is 
necessary  to  prove  what  the  terms  of  the  defendant's  under- 
taking were  ; 3  and  by  the  terms  of  his  undertaking,  he  may 
put  himself  into  the  situation  of,  and  incur  the  responsibility 
of,  a  common  carrier,  as  by  his  special  warranty.*  A  car- 
rier's receipt  for  goods  is  of  course  evidence  of  a  contract 
between  him  and  the  owner  ; 5  and  the  substance  of  a  bill  of 
lading  is  a  formal  acknowledgment  of  the  receipt  of  goods, 
and  an  express  engagement  to  deliver  to  the  consignee,  or  his 
assigns.6  In  a  declaration  in  assumpsit  against  a  common 
carrier  by  water,  for  the  non-delivery  of  a  certain  quantity  of 
salt  and  steel  which  he  had  received  to  transport ;  it  was  held, 
that  a  bill  of  lading  in  which  the  defendant  acknowledged  the 
receipt,  not  only  of  the  salt  and  steel,  but  also  of  certain 
other  articles,  was  not  objectionable  as  evidence  on  the 
ground  of  variance.7 

§  465.  Secondly,  of  delivery.  The  responsibility  of  a  car- 
rier attaches  upon  the  delivery  to  him  of  the  goods  to  be 
forwarded,  and  if  accepted,  without  evidence  of  any  special 
agreement  as  to  reward.  What  is  sufficient  evidence  of  a 
delivery  and  the  consequent  responsibility,  has  already  been 
considered ; 8  and  it  has  appeared,  that  it  is  sufficient  to  prove 


1  Upston  v.  Slark,  2  C.  &  Payne,  R.  598 ;  and  see  Newborn  v.  Just, 
Ib.  76  ;  Gilbert  v.  Dale,  1  Nev.  &  P.  R.  22  ;  and  see  ante,  $  69. 

2  Ante,  §  135. 

3  2  Stark.  Ev.  332  ;  and  ante,  §  59,  60. 

4  Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  417,  the  facts  in  which  are 
given  in  detail,  ante,  §  59. 

5  Samuel  v.  Darch,  2  Stark.  R.  60. 

6  Ante,  §  223-232,  398,  et  seq. 

7  Wallace  v.  Vigus,  4  Black.  (Ind.)  R  260. 

8  Ante,  Chap.  V.- 


442  LAW   OP    CARRIERS.  [cH.  X. 

a  delivery  to  a  duly  authorized  agent  of  the  carrier,  as,  to  the 
master  of  a  vessel,  or,  to  one  driving  the  coach  or  wagon  on 
the  course  of  conveyance.1  It  is  sufficient  for  the  plaintiff  to 
show,  that  a  parcel  was  delivered  to  a  person  and  at  a  house 
where  parcels  were  being  in  the  habit  of  being  left  for  the 
carrier  ;  and  the  person  who  so  left  the  parcel  may  be  asked 
on  cross-examination,  in  an  action  for  the  loss,  what  direction 
was  on  the  parcel.2  In  order  to  show  a  delivery,  notice  should 
be  given  to  the  defendant  to  produce  his  book  of  entries  and 
way-bill,  if  any  ;  and  he  should  also  prove  what  orders  were 
given  at  the  time  of  delivery,  as  to  the  carriage  of  the  goods, 
and  the  direction  written  upon  the  box  or  package.3 

§  466.  If  it  be  proved,  that  one  common  carrier  has  re- 
ceived goods  from  another  carrier,  to  whom  they  were  at 
first  delivered  by  the  owner  for  carriage,  he  may  become 
liable  to  the  owner  as  common  carrier.  Where  A.  agreed 
with  B.,  a  common  carrier,  for  the  carriage  of  goods,  and 
B.,  without  A.'s  directions,  agreed  for  the  carriage  with  C., 
who,  without  A.'s  knowledge,  agreed  with  D.,  a  third  car- 
rier ;  it  was  held,  that  A.  might  maintain  an  action  against 
D.  for  not  delivering  the  goods  ;  and  that  by  bringing  the 
action,  A.  affirmed  the  contract  made  with  D.  by  C.,  and 
could  not  afterwards  recover  from  B.4  Where  it  appeared 
that  the  goods  were  delivered  to  an  express  forwarder,  and 
that  he  delivered  them  over  to  a  steamboat  company  who 
acted  as  common  carriers,  to  be  transported ;  this  evidence 
was  held  to  support  an  action  brought  directly  against  the 
latter,  with  whom  the  contract  was  to  be  deemed  to  have 
been  made,  through  the  agency  of  the  express  forwarder ; 
the  contract  with  the  steamboat  company,  being  ratified  by 


1  Ante,  $  146,  147. 

2  Burrell  v.  North,  2  C.  &  K.  R.  680,  cited  in  Lond.  Law  Mag.  for 
Nov.  1848. 

3  2  Stark.  Ev.  200  ;  2  Greenl.  Ev.  §  213. 

*  Sanderson  v.  Lamberton,  6  Binn.  (Penn.)  R.  129.. 


CH.  X.]  ACTIONS   AGAINST. — EVIDENCE.  443 

the  owner  of  the  goods  by  his  bringing  the  action  against 
them.1 

§  467.  Thirdly,  as  to  proof  of  loss.  The  letter  of  a  car- 
rier may  be  used  as  evidence  against  him,  that  the  loss  was 
in  consequence  of  his  default ;  2  and  also  in  proof  of  the  loss, 
the  declaration  of  the  defendant's  coachman  or  driver,  in 
answer  to  an  inquiry  made  of  him  for  the  goods,  is  compe- 
tent evidence  for  the  plaintiff.3 

§  468.  A  declaration  of  the  carrier  himself,  that  the  pro- 
perty in  his  custody  for  conveyance  was  lost  by  accident  or 
stolen  from  him,  accompanied  with  a  narration  of  all  the 
circumstances  accompanying  the  loss,  it  has  been  held,  ought 
to  be  admitted  as  part  of  the  case,  so  as  to  entitle  the  carrier 
to  the  benefit  of  the  statement  at  the  trial,  as  a  part  of  the 
res  gestce.  But  it  is  with  the  qualification,  that  the  jury  is  at 
liberty  to  disbelieve  the  statement  or  to  trust  to  it,  according, 
as  in  their  judgment,  the  whole  circumstances  do,  or  do  not, 
repel  the  presumption  of  negligence.4  The  principal  points 
of  attention  are,  whether  the  declarations,  with  the  circum- 
stances offered  in  proof,  were  contemporaneous  with  the  main 
fact  under  consideration,  and  whether  they  were  so  connected 


1  New  Jersey  Steam  Nav.  Co.  v.  Merchants  Bank,  6  How.  (U.  S.)  R. 
344,  and  Appx.  p.  liv. 

a  Cullen  v.  M'Alpine,  2  Stark.  R.  552. 

3  2  Greenl.  Ev.  §  213  ;  Mahew  v.  Nelson,  6  C.  &  Payne,  R.  58. 

4  Tompkins  v.  Sallmarsh,  14  S.  &  Rawle,  (Penn.)  R.  275,  cited  more 
fully  ante,  §  40,  and  see  the  other  cases  there  referred  to.     Beardslee  v. 
Richardson,  11  Wend.  (N.  Y.)  R.  25.     Surrounding  circumstances,  con- 
stituting parts  of  the  res  gesta,  may  always  be  shown  to  the  jury,  along 
with  the  principal  fact.     Rawson  v.  Haigh,  2  Bing.  R.  104;  Ridley  v. 
Gyde,  9  Ib.  349 ;  Pool  ».  Bridges,  4  Pick.   (Mass.)  R.  37  ;    Allen  v. 
Duncan,  11  Ib.  309  ;  and  that  a  party's  own  declarations  may  be  given  in 
evidence,  if  they  are  a  part  of  the  res  gestce,  see  Millikin  v.  Greer,  5  Mis- 
sissip.  R.  429;  Postern  v.  Postern,  3  Watts  &  S.  (Penn.)  R.  127;  Stitt 
v.  Wilson,  Wright,   (Ohio)  R.  505  ;  Redder  v.   Spruance,  4  Harring. 
(Del.)  R.  216  ;  In  re  v.  Taylor,  9  Paigne,  (N.  Y.)  Ch.  R.  611. 


444  LAW   OF   CARRIERS.  [CH.  X. 

as  to  illustrate  its  character.1  It  was  said  by  Hosmer,  C.  J. 
in  Enos  v.  Tuttle,2  that  "  declarations,  to  become  a  part  of 
the  res  gestce,  must  have  been  made  at  the  time  of  the  act 
done,  which  they  are  supposed  to  characterize ;  and  have 
been  well  calculated  to  unfold  the  nature  and  quality  of  the 
facts  they  were  intended  to  explain,  and  so  to  harmonize  with 
them,  as  obviously  to  constitute  one  transaction."  3 

§  469.  In  an  action  against  a  carrier  for  a  loss,  his  agent  or 
servant  is  not  generally  a  competent  witness  in  his  defence. 
The  disqualification  of  the  agent  or  servant  consists  in  his 
having  a  direct  interest  in  the  event  of  the  suit ;  or  arising 
from  his  liability  to  his  employer,  in  a  subsequent  action,  to 
refund  the  amount  of  damages  which  the  employer  may  have 
paid.  This  is  the  well  known  rule  as  applicable  to  the  rela- 
tion of  principal  and  agent,  wherever  that  relation,  in  its 
broadest  sense,  may  be  found  to  exist.4  As,  for  example,  to 

1  1  Greenl.  Ev.  §  108. 

2  Enos  v.  Tuttle,  3  Conn.  R.  250. 

3  See  opinion  of  Duncan,  J.,  ante,  §  40.     Against  a  private  carrier 
charged  with  the  loss  of  goods  by  negligence,  the  common  declaration  in 

assumpsit  is  as  follows  :  —  "  For  that  on in  consideration  that  the 

plaintiff  at  the  request  of  the  said  (defendant)  had  delivered  to  him  certain 

goods  and  chattels,  to  wit,  [here  describe  them]  of  the  value  of ,  to 

be  safely  conveyed  by  him  from to ,  for  certain  reward  to  be  paid 

to  the  said  (defendant),  he,  the  said  (defendant),  promised  the  plaintiff  to 
take  good  care  of  said  goods,  while  he  had  charge  of  the  same,  and  with 

due  care  to  convey  the  same  from to aforesaid,  and  there  safely 

to  deliver  the  same  to  the  plaintiff,    (or,  to ,  as  the  case  may  be). 

Yet  the  said  (defendant)  did  not  take  due  care  of  said  goods  while  he  had 
charge  of  the  same  as  aforesaid,  nor  did  he  with  due  care  convey  and 
deliver  the  same  as  aforesaid ;  but  on  the  contrary,  so  carelessly  and  im- 
properly conducted  in  regard  to  said  goods,  that  by  reason  thereof  they 
became  and  were  wholly  lost  to  the  plaintiff."     2  Greenl.  Ev.  n.  (2)  to 
§210. 

4  It  has  frequently  been  held,  that  where  negligence  is  imputed  to  the 
plaintiff's  agent,  such  as  if  proved,  would  preclude  the   plaintiff  from 
recovering,  such  agent  is  an  incompetent  witness  for  the  plaintiff.    1  Stark. 
Ev.  116  ;  1  Greenl.  Ev.  §  394  ;  Thompson  v.  Lothrop,  21  Pick.  (Mass.) 
R.  336. 


CH.  X.]  ACTIONS  AGAINST.  —  EVIDENCE.  445 

the  case  of  the  captain  of  a  vessel,  in  an  action  against  the 
owner  of  a  vessel  for  deviation  or  for  negligence,1  or  to  the 
case  of  a  pilot,  in  an  action  against  the  owner  and  captain  of 
a  vessel,  for  mismanagement  while  the  pilot  was  in  charge,2 
or  of  a  guard  of  a  coach,  implicated  in  the  like  mismanage- 
ment, in  an  action  against  the  proprietor.3  Neither  of  such 
persons  are  competent,  without  a  release,  to  give  testimony, 
the  direct  legal  effect  of  which  will  be  to  place  themselves  in 
a  situation  of  security  against  a  subsequent  action.4  But 
factors,  brokers,  forwarding  merchants,  &c.  are  competent 
witnesses  against  the  carrier,  when  offered  to  prove  the 
receipt  and  delivery  of  the  goods,  and  other  acts  within  the 
scope  of  their  employment.  The  exception  to  the  general 
rule,  that  they  may  testify  though  interested,  is  founded  in 
public  convenience  and  necessity  ;  for  otherwise  affairs  of 
daily  and  ordinary  occurrence  could  not  be  proved,  and  the 
freedom  of  trade,  and  of  commercial  intercourse  would  be 
inconveniently  restrained.5 


1  Rothero  v.  Elton,  Peake's  C.  84  ;  De  Symonds  v.  De  la  Cour,  2  New 
R.  374.     The  captain  of  a  canal  boat  is  not  a  competent  witness  for  the 
owner,  without  a  release.     Humphreys  v.  Reed,  6  Whart.  (Penn.)  R. 
435. 

2  Hawkins  v.  Finlayson,  3  C.  &  Payne,  R.  395. 

3  Whitamore  ».  Waterhouse,  4  C.  &  Payne,  R.  383.     In  an  action  for 
negligently  driving  a  mail-coach  against  the  plaintiff's  wagon,  his  wagoner 
was  held  to  be  incompetent,  without  a  release  ;  although  he  swore  he  left 
sufficient  room  for  the  defendant's  mail,  and  although  the  jury  found  by 
their  verdict  that  he  was  not  to  blame.     Moorish  v.  Foote,  2  Moore,  R. 
508. 

4  1  Greenl.  Ev.  394  ;  1  Phillips,  Ev.  61 ;   1  Stark.  Ev.  115-118,  3d 
Lond.  edit.     There  is  a  distinction  between  those  cases  where  the  judg- 
ment will  be  evidence  of  the  material  facts  involved  in  the  issue,  and  those 
where  it  will  be  evidence  only  of  the  amount  of  damages  recovered,  which 
the  defendant  may  be  compelled  to  pay.     1  Greenl.  Ev.  393. 

5  1  Greenl.  Ev.  §  476.     In  Thome  v.  Hallett,  in  the  Common  Pleas 
(see  Boston  Journ.  of  June  1,  1849,)  the  plaintiffs  were  merchants  in 
Vergennes,  Vt.  ;  and  they  brought  their  action  against  the  captain  of  the 
schooner  Henry  Curtis  to  recover  the  value  of  a  hogshead  of  sugar  lost  on 
the  passage  from  Boston  to  Troy.     The  plaintiffs  had  purchased  a  large 

38 


446  LAW    OF   CARRIERS.  [CH.  X. 

§  470.  Upon  the  subject  of  burden  of  proof  in  an  action 
against  a  carrier  for  negligence,  and  as  to  the  question  upon 
whom  it  lies,  the  rule  in  respect  to  gratuitous  carriers,  has 
already  been  laid  down  to  be  in  conformity  with  the  general 
rule  of  the  law  of  evidence,  viz.,  that  where  the  allegation 
is  affirmative  it  is  sufficient  to  oppose  it  by  a  bare  denial,  till 
it  is  properly  established ;  and  that  the  proposition,  though 
negative  in  its  terms,  must  also  be  proved  by  the  party  who 
states  it ;  1  as  where  there  is  a  charge  against  a  carrier  with- 
out hire,  of  gross  negligence,  which  is  in  the  nature  of  fraud.2 
But  although  in  actions  on  the  case  and  of  asstimpsit,  the 
burden  of  proof  is  on  the  plaintiff  to  make  out  his  case  as 
he  charges  it,  proof  of  demand  and  refusal,  or  an  apparent 
conversion,  in  an  action  of  trover,  will  put  the  defendant 
on  his  defence.3  Wherever  non-feasance  or  negligence  is 
alleged,  in  an  action  on  contract,  the  burden  of  proof  is  un- 
questionably on  the  plaintiff,  notwithstanding  its  negative 


quantity  of  goods  in  Boston,  including  the  lost  hogshead  ;  and  they  were 
properly  directed  to  the  care  of  M.  D.  Hall,  at  Troy ;  and  were  delivered 
on  board  the  schooner  then  bound  to  Troy.  Hall  was  a  forwarding  mer- 
chant at  Troy  ;  and  he  as  well  as  Flinn,  the  master  of  the  canal  boat  which 
took  the  rest  of  the  plaintiff's  goods  from  Troy  to  Vergennes,  testified 
that  the  hogshead  was  not  received  with  the  other  goods  from  the  Henry 
Curtis.  The  defendant's  counsel  objected  to  the  competency  of  Hall  and 
Flinn  to  testify,  on  the  ground  that  they  might  be  liable  for  the  loss  of  the 
goods,  and  they  were  interested,  as  their  testimony  tended  to  exculpate 
themselves.  But  as  it  appeared  that  neither  of  the  witnesses  had  any 
interest  in  the  canal  boat  —  Hall  being  a  forwarding  merchant  only,  and  so 
not  liable  as  a  common  carrier ;  (see  ante,  §  75)  —  and  Flinn  being  hired 
by  the  month,  —  C.  J.  Wells  ruled,  that  they  were  competent  witnesses. 

1  See  ante,  Chap.  IV. ;  1  Greenl.  Ev.  Chap.  III.     Where  the  plaintiff 
alleges  damage  in  consequence  of  the  defendant's  negligence  in  driving 
on  the  highway,  the  burden  of  proof  is  on  the  plaintiff  to  show  ordinary 
care  on  his  own  part,  and  want  of  it  on  the  part  of  the  defendant.     Lane 
v.  Crombie,  12  Pick.  (Mass.)  R.  177. 

2  See  ante,  §  37,  38,  for  the  authorities  on  this  subject,  and  1  Greenl. 
Ev.  6  80. 

3  Ante,  t)  38,  n.  2. 


CH.  X.]  ACTIONS   AGAINST.  —  EVIDENCE.  447 

character ; 1  that  is,  the  party  making  the  allegation  of  loss 
or  non-delivery,  must  give  some  evidence  in  support  of  the 
allegation,  notwithstanding  its  negative  character.2  In  re- 
spect to  the  carriage  of  goods  for  hire  by  persons  who  are 
not  common  carriers,  it  has  appeared,  that  there  are  dis- 
crepancies in  the  authorities  as  to  the  application  of  the 
above  rule.3  In  cases  which  have  been  cited,  it  was  con- 
sidered, that  the  fact  of  a  loss  by  a  carrier  for  hire,  by  secret 
purloining  of  the  goods  in  his  hands,  is  such  prima  facie 
evidence  of  the  want  of  ordinary  care,  as  to  compel  the 
defendant  to  rebut  it  by  proof  of  ordinary  care  ;  and  such  is 
the  opinion  advanced  by  Sir  William  Jones.4  Where  a 
public  conveyance  is  overturned  or  breaks  down,  without 
any  apparent  cause,  the  law  will  imply  negligence,  and  the 
burden  of  proof  is  on  the  owners  to  rebut  that  legal  pre- 
sumption.5 And  the  very  occurrence  of  loss  or  damage  to 
goods  delivered  to  a  private  bailee  for  hire  seems  to  be  re- 
garded, of  itself,  cogent  evidence  of  the  want  of  ordinary 
care.6  The  reason  it  is  so,  and  that  it  is  sufficient,  if  the 
plaintiff  offers  such  evidence,  as  in  the  absence  of  any 
counter  testimony,  affords  ground  of  presuming,  that  the 
allegation  he  makes  is  true,  is,  that  if  proof  of  the  negative 
were  required,  the  inconvenience  would  be  very  great.7 
However,  in  most  cases,  the  question  of  negligence  is  more 
a  question  of  fact  to  be  determined  by  the  jury,  under  the 
particular  circumstances,  than  of  law.8 

§  471.  In  an  action  against  carriers  for  the  loss  of  a  parcel, 


1  1  Greenl.  Ev.  §  81  ;  and  see  ante,  §  48,  n.  2 ;  also  §  32,  33,  35. 

2  2  Greenl.  Ev.  §  213 ;  Tucker  v.  Cracklin,  2  Stark.  Ev.  385. 

3  See  ante,  $  61,  and  the  authorities  there  cited. 

4  Ante,  fy  48,  et  seq. 

5  Ware  v.  Gay,  11  Pick.  (Mass.)  R.  106. 

6  See  ante,  $  50. 

7  1  Greenl.  Ev.  §  78,  79. 

8  Ante,  §  51,  and  the  authorities  there  referred  to,  and  §  184,  et  seq. 


448  LAW   OF   CARRIERS.  [CH.  X. 

the  consignee's  shopman,  not  knowing  of  the  delivery,  and 
believing  he  must  have  known  it  if  a  delivery  had  taken  place, 
is  prima  facie  evidence  of  non-delivery.  In  an  action  of  as- 
sumpsit  for  negligence  in  carriers  in  losing  a  parcel,  in  which 
the  general  issue  was  pleaded,  it  appeared  that  the  plaintiff 
had  ordered  goods  to  be  sent  by  the  defendants'  stage-coach, 
and  the  consignor  of  the  goods  proved  the  giving  the  parcel 
to  the  defendants'  coachman,  and  that  it  was  directed  to  the 
plaintiff.  To  show  that  it  never  came  to  hand,  the  plaintiff's 
shopman  was  called,  who  did  not  know  of  the  delivery,  but 
believed  it  could  not  have  been  delivered  without  his  know- 
ledge. Hullock,  B.,  considered,  that  the  evidence  of  non- 
delivery was  sufficient  to  call  on  the  defendants  to  prove  a 
delivery  by  their  porter,  or  some  other  witness  ;  because  the 
plaintiff  could  not  be  expected  to  prove  a  non-delivery  better 
than  he  had  done.1 

§  472.  In  respect  to  a  loss  by  a  common  carrier,  the  bur- 
den of  proof  is,  without  any  manner  of  doubt,  upon  him  to 
show,  that  the  loss  was  occasioned  by  the  act  of  God,  or  the 
public  enemy,2  though  the  burden  of  proof  in  an  action  on 
the  case  may  be  on  the  plaintiff  to  show,  that  the  property 
did  not  safely  reach  its  destination  ;  and  yet,  in  assumpsit, 
it  may  be  sufficient  to  prove  the  delivery  of  the  property  to 
the  defendant,  and  then  call  upon  him  to  account  for  it.3  If 

1  Griffiths  v.  Lee,  1  C.  &  Payne,  R.  110. 

2  See  ante,  §  202,  and  Chap.  VI.  generally.     An  authority  not  there 
cited  is  the  case  of  King  v.  Shepherd,  3  Story,  (Cir.  Co.)  R.  349.     In 
that  case  a  box  of  gold  sovereigns  was  shipped,  to  be  carried  from  New 
York  to  Mobile,  and  the  bill  of  lading  only  contained  the  usual  exceptions 
against  "  perils  of  the  seas,"  and  the  ship  was  wrecked  and  the  money 
lost.     It  was  held,  that  the  burden  of  proof  was  on  the  master  and  owners 
of  the  ship  to  show,  that  the  loss  occurred  by  a  "  peril  of  the  seas  ;  "  and 
that,  failing  to  do  this,  they  were  responsible  for  the  loss,  however  it 
occurred.     And  see  ante,  §  188,  et  seq. 

3  Tucker  v.  Cracklin,  2  Stark.  R.  385 ;  Day  v.  Ridley,  16  Vermt.  R. 
48.     That  the  burden  of  proof  may  be  turned  upon  the  defendant  by  slight 
proof,  see  Griffith  v.  Lee,  ub.  sup. 


CH.  X.]  ACTIONS   AGAINST.  —  EVIDENCE.  449 

a  cargo  weighing  a  certain  weight  be  delivered  to  him  to  be 
carried,  and  when  the  cargo  arrives  at  its  destination  the 
weight  be  deficient,  this  is  evidence  from  which  a  jury  may 
infer  negligence  in  the  carrier  ;  and  if  the  deficiency  did 
not  arise  from  the  negligence  of  the  carrier,  it  is  incumbent 
on  him  to  show  that.  It  was  proved  in  Hawkes  v.  Smith,1 
that  more  than  sixty-nine  tons  of  bones  were  put  on  board 
the  defendant's  vessel,  and  that,  at  the  end  of  the  voyage 
there  were  not  sixty-nine  tons,  but  a  much  smaller  weight. 
The  defendant  pleaded  that  he  took  proper  care  of  them, 
and  did  carry  them  safely  in  a  reasonable  time  ;  and  also 
that  the  bones  were  put  on  board  in  a  damp  state,  by  reason 
whereof,  and  without  any  default  of  the  defendant,  they 
became  decomposed,  and  the  defendant,  therefore,  could  not 
perform  his  promise.  By  Rolfe,  B. :  "I  think  that  this  is 
evidence  from  which  the  jury  may  infer  negligence  ;  and 
that  if  there  was  no  negligence  on  the  part  of  the  defendant, 
he  should  show  that."  2 

§  473.  But  where  a  common  carrier  has  qualified  his  lia- 
bility as  such,  by  a  general  notice  to  all  who  may  employ 
him,  of  any  reasonable  requisition  to  be  observed  on  their 
part,  in  regard  to  the  manner  of  delivery  and  entry  of  par- 
cels, and  the  information  to  be  given  to  him  of  their  con- 
tents, and  rates  of  freight ;  and  it  is  proved,  that  such 
notice  is  brought  home  to  the  knowledge  of  the  employer, 
he,  (the  carrier)  then  descends  to  the  situation  of  a  private 
carrier  for  hire,  and  therefore  the  burden  of  proof  of  negli- 
gence falls  more  upon  the  employer.  But  the  burden  of 
proof  is  on  the  common  carrier  to  show  clearly,  that  the 
person  with  whom  he  deals  has  been  fully  informed  of  the 
terms  of  the  notice.3 


1  Hawkes  v.  Smith,  1  C.  &  Marsh.  R.  72. 

3  As  to  loss  of  goods  by  decay,  leakage,  &c.,  see  ante,  §  210-214. 
See  ante,  §  54,  245,  247,  el  seq.t  267,  268. 
38* 


450  LAW    OP   CARRIERS.  [cH.  X. 

§  474.  The  law  of  evidence,  in  respect  to  the  value  of  the 
goods  lost  by  a  bailee,  is  of  much  importance.  Where  no 
fraud  has  been  proved  on  the  part  of  a  bailee,  the  presump- 
tion as  to  the  precise  value  will  be  against  the  demand  of 
the  plaintiff,  unless  he  establishes  the  precise  value,  by  clear 
evidence.  But  if  the  conduct  of  the  bailee  be  tinctured 
with  fraud,  the  presumption  will  be  in  favor  of  the  plaintiff's 
demand.  In  assumpsit  for  goods  sold  by  a  liquor  merchant, 
and  the  only  proof  as  to  the  contents  of  the  bottles  delivered 
being  by  the  plaintiff's  servants,  who  could  not  speak  to  the 
quality  of  the  contents,  the  jury,  in  the  absence  of  all  fraud, 
were  directed  to  presume  them  filled  with  the  cheapest 
liquor  with  which  the  plaintiff  dealt.1  So  where  the  delivery 
of  a  bank  note  was  proved,  but  its  denomination  not  shown, 
the  jury  were  instructed  to  presume  it  to  be  of  the  lowest 
denomination  in  circulation.2  In  the  case  of  Armory  v.  Dela- 
mirie,3on  the  other  hand,  the  presumption  of  the  value  of  the 
thing  in  question,  was,  on  account  of  fraud  in  the  defendant, 
in  favor  of  the  plaintiff.  That  case  was,  —  a  chimney- 
sweeper's boy  having  found  a  jewel,  took  it  to  the  defendant, 
a  goldsmith,  to  know  its  value.  The  defendant  knocked 
out  the  stones,  and  returned  the  plaintiff  the  setting,  refusing 
to  give  him  back  the  stones.  In  trover  for  the  value  of  the 
stones,  Pratt,  C.  J.,  directed  the  jury,  that  unless  the  defend- 
ant would  produce  the  stones,  so  as  to  show  they  were  not 
of  the  finest  water,  they  ought  to  presume  against  him,  and 
make  the  value  of  the  best  jewels  that  would  fit  that  setting, 
the  measure  of  their  damages. 

§  475.  Supposing  the  delivery  of  a  box  or  trunk  to  a  car- 
rier for  conveyance,  and  the  loss  of  it  by  him  to  be  fully 
proved,  and  that  no  person  but  the  owner  has  knowledge  of 
the  particular  contents,  the  question  by  what  evidence,  in 

1  Clunnes  v.  Perrey,  1  Camp.  R.  8. 

2  Lawton  v.  Sweeney,  8  Jur.  964,  cited  in  2  Greenl.  Ev.  §  255. 

3  Armory  v.  Delamirie,  1  Sir.  R.  105. 


CH.  X.] 


ACTIONS   AGAINST.  —  EVIDENCE. 


451 


an  action  for  damages  against  the  carrier,  or  in  an  action  of 
trover  for  the  goods,  is  the  quality,  quantity,  and  value  of  the 
goods,  to  be  ascertained  and  estimated  by  the  jury,  is  one  of 
great  practical  importance  to  the  community.  In  Butler  v. 
Basing,1  the  action  was  against  the  defendant  as  proprietor 
of  a  stage- wagon  for  the  loss  of  a  box,  and  Garrow,  B.,  in 
summing  up  to  the  jury  said :  —  "  With  regard  to  the  amount 
of  the  damages  in  case  a  verdict  passes  for  the  plaintiff,  it  is 
right  that  I  should  tell  you  that  here  is  no  distinct  evidence 
of  the  contents  of  the  box  ;  however,  I  should  recommend 
you  not  to  pare  down  the  amount  of  damages,  because  the 
articles  contained  in  it  cannot  be  distinctly  proved.  It  very 
often  happens  that  persons,  more  especially  those  in  the  sta- 
tion of  life  in  which  the  plaintiff  is,  pack  their  own  clothes, 
and  in  such  cases  it  must  be  always  impossible  to  give  evi- 
dence of  the  precise  contents  of  the  boxes  or  portmanteaus. 
I  should  therefore  recommend  you,  if  you  find  for  the  plain- 
tiff, to  give  damages  proportioned  to  the  value  of  the  articles 
•which  in  your  judgment  you  think  the  box  might  and  did 
fairly  contain." 

§  476.  Mr.  Bell  says :  — "  The  value  of  the  parcel  or 
thing  lost  may  occasion  difficulty,  unless  dispensed  with  by 
a  general  rule.  A  person  cannot  always  have  direct  and 
positive  evidence  of  the  sum  which  may  have  been  in  his 
pocket-book  when  stolen  from  an  inn ;  or,  of  the  value  of 
his  luggage,  taken  from  a  coach.  In  order  to  get  quit  of  the 
difficulty,  a  very  clumsy  and  dangerous  remedy  formerly 
prevailed  in  Scotland  ;  namely,  that  the  person  should,  by 
his  own  oath,  be  allowed  to  establish  that  value  against  the 
carrier  or  innkeeper  ;  it  being  reserved  to  the  Court  to 
restrain  the  claim."  He  further  observes:  —  "I  should 
have  no  doubt,  that  reasonable  evidence  would  now  be 
required  of  the  nature  and  value  of  the  thing  lost,  fortified 


1  Butler  v.  Basing,  2  C.  &  Payne,  R.  613. 


452  LAW   OF  CARRIERS.  [CH.  X. 

by  the  oath  of  the  employer."  l  It  is  indeed  very  well 
known,  that,  as  a  general  rule,  a  party  is  not  competent  to 
testify  in  his  own  cause ;  but  this  general  rule,  like  every 
other,  has  its  exceptions;  and  necessity,  either  physical  or 
moral,  it  has  been  said,  dispenses  with  the  ordinary  rules  of 
evidence.2  This  principle  of  necessity  is  recognized  in  Eng- 
land in  decisions  which  have  been  made  on  the  statute  of 
Win  ton,  in  which  it  is  held,  that  the  party  robbed  is,  from 
necessity,  a  competent  witness  to  prove  the  robbery,  and  of 
what  sum  or  things  he  was  robbed,  in  support  of  his  own 
action.3  It  is  also  laid  down,  that  on  a  trial  at  Bodnyr,  coram 
Montagu,  against  a  common  carrier,  a  question  arose  about 
the  things  in  a  box.  and  he  declared,  that  this  was  one  of 
those  cases  where  the  parly,  himself,  might  be  a  witness 
ex  necessitate  rei ;  for,  every  one  did  not  show  what  was 
put  in  his  box.4 

§  476  a.  The  principle  that  necessity  dispenses  with  the 
ordinary  rules  of  evidence  has  been  recognized  in  Pennsyl- 
vania, in  an  action  to  recover  the  value  of  the  contents  of  a 
trunk  lost  from  a  stage-coach,  and  the  plaintiff  was  held  to 
be  a  competent  witness  to  prove  the  contents,  and  the  value 
of  the  articles  composing  them  ;  arid,  in  giving  the  judgment 
of  the  Court  in  this  case,  Gibson,  C.  J.,  said :  —  "  On  the 
ground  of  necessity,  the  plaintiff  was  competent  not  only  to 
specify  the  articles  contained  in  the  trunk,  but  to  prove  the 
value  of  them.  Book  entries  by  the  parties'  own  hand  are 
evidence,  not  only  of  sale  and  delivery,  but  also  of  price, 
which  is  a  part  of  the  contract.  Originally  such  entries  were 


1  1  Bell,  Comra.  379,380. 

2  Per  Rogers,  J.,  in  Clark  v.  Spence,  10  Watts,  (Penn.)  R.  335  ;  and 
see  1  Greenl.  Ev.  §  348.     As  to  the  testimony  of  witnesses  who  are  inter- 
ested, being  admitted  ex  necessitate,  in  the  Admiralty,  see  post,  §  670. 

3  Rolle,  Abr.  685,686,  cited  in  Herman  v.  Drinkwater,  1  Greenl.  (Me.) 
R.  27. 

*  12  Vin.  24,  pi.  32. 


CH.  X.]  ACTIONS   AGAINST.  —  EVIDENCE.  453 

allowed  to  prove,  perhaps,  no  more  than  delivery  ;  but  ex- 
perience induced  the  Courts  to  go  further.  Yet  the  value  of 
merchandise,  bearing,  as  it  does,  a  determinate  price  in  the 
market,  might  be  more  readily  estimated  from  description, 
than  the  more  uncertain  value  of  clothing  in  every  degree  of 
wear,  which  the  owner  would  be  better  able  to  estimate  than 
a  disinterested  witness,  who  must,  after  all,  found  his  judg- 
ment on  the  description  which  the  owner  may  choose  to  give. 
Why  trust  to  his  data  and  not  to  his  estimate  ?  It  is  as  easy 
to  give  a  false  description  as  to  overrate  the  value." l 

§  477.  In  Herman  v.  Drinkwater,  a  shipmaster,  having 
received  a  trunk  of  goods  on  board  his  vessel,  to  be  carried 
to  another  port,  which  on  the  passage  he  broke  open  and 
rifled  of  its  contents ;  the  owner  of  the  contents,  proving  the 
delivery  of  the  trunk  and  its  violation,  was  admitted  a  wit- 
ness, in  an  action  of  trover  for  the  goods  against  the  ship- 
master, to  testify  to  the  particular  contents  of  the  trunk ; 
there  being  no  other  evidence  of  the  fact  to  be  obtained. 
The  case  was,  however,  an  aggravated  case,  and  exhibited 
conduct  of  great  moral  turpitude  on  the  part  of  the  defendant. 
The  plaintiff  was  an  unsuspecting  foreigner,  ignorant  of  the 
language  of  the  United  States,  to  which  country  the  defend- 
ant belonged.  Having  invested  his  property  in  certain  arti- 
cles of  small  bulk,  he  shipped  them,  packed  in  a  trunk,  on 
board  the  brig  of  which  the  defendant  was  master,  then  in 
the  port  of  London,  who  undertook  to  transport  them  to 
New  York.  He  also  engaged  a  passage  for  himself  in  the 
same  vessel  to  accompany  his  goods,  and  sent  on  board  his 
clothes  and  other  baggage  necessary  for  his  personal  accom- 
modation ;  but  the  defendant,  indifferent  as  to  the  interest 
of  the  stranger,  sailed  without  him ;  and,  on  the  passage  he 
violated  the  trunk,  presented  a  part  of  the  contents  to  his 
mate  and  crew,  but  kept  the  more  valuable  himself ;  profess- 


Whitesell  v.  Crune,  8  Watts  &  S.  (Penn.)  R.  369. 


454  LAW   OF   CARRIERS.  [CH.  X. 

edly,  because  he  might  be  held  responsible  at  a  future  day. 
Instead  of  sailing  for  New  York,  he  sailed  for,  and  arrived 
at,  Portland  ;  and  at  the  latter  place  disposed  of  a  part  of 
his  plunder.  In  the  mean  time  the  plaintiff  took  passage  in 
another  vessel,  and  arrived  at  New  York,  where,  not  hearing 
of  the  defendant,  he  wrote  to  Portland  where  the  vessel  was 
owned.  His  correspondent  applied  to  the  defendant,  who 
denied  ever  having  received  the  goods  ;  and  it  was  not  until 
certain  of  the  articles  sold  in  Portland  were  identified  beyond 
all  question,  by  the  particular  description  which  the  plaintiff 
had  furnished,  under  oath,  of  the  contents  of  the  trunk,  that 
the  fact  was  established,  that  the  defendant  had  received  and 
embezzled  the  property.  To  prove  the  particular  contents, 
the  Judge  who  presided  at  the  trial,  admitted  the  deposition 
or  affidavit  of  the  plaintiff,  upon  the  ground  of  necessity  ;  he 
not  having  it  in  his  power  to  establish  the  fact  by  other  proof. 
The  testimony  was  objected  to  on  the  part  of  the  defendant, 
and  a  new  trial  granted.  Weston,  J.,  in  giving  the  opinion 
of  the  Court,  said  :  —  "In  the  case  before  us,  the  plaintiff 
had  sustained  his  action  by  proof  not  liable  to  objection  ;  but 
the  extent  of  the  damages  to  which  he  was  entitled  could  be 
ascertained  only  by  his  own  testimony.  As  he  was  to  ac- 
company the  goods  himself,  it  is  not  to  be  presumed  that  he 
took  any  bill  of  lading  or  receipt  from  the  defendant ;  and 
if  he  had,  such  an  instrument  does  not  usually  specify  the 
particular  contents  of  trunks  and  packages.  The  plaintiff, 
therefore,  unless  his  oath  is  admitted,  must  be  deprived  of  an 
adequate  remedy;  although  the  justice  of  his  claim  is  most 
apparent.  The  analogy  between  his  case  and  that  of  the 
party  robbed,  in  an  action  under  the  statute  of  Winton,  is 
very  striking  ;  and  his  testimony  is  strongly  corroborated  by 
circumstances.  Upon  the  whole,  we  are  all  of  opinion,  that 
the  deposition  or  affidavit  of  the  plaintiff  was  rightly  admit- 
ted, upon  the  ground  of  necessity."  1 

1  Herman  v.  Drinkwater,  1  Greenl.  (Me.)  R.  27.     The  defendant  in 
this  case  was  clearly  guilty  of  a.  felony.     A  servant  is  guilty  of  felony  in 


CH.  X.]  ACTIONS  AGAINST.  —  EVIDENCE.  455 

§  478.  In  the  case  given  in  the  preceding  section,  the 
defendant  had  committed  a  gross  fraud,  and  the  party's  own 
oath  was  allowed  as  evidence,  in  odium  spolialoris.1  But  it 

stealing  his  master's  goods,  although  he  has  the  custody  of  them  for  a 
particular  purpose.  East,  P.  C.  554,  and  2  Stark.  Ev.  (3d  Lond.  edit.) 
$  10.  So  where  a  butler  steals  his  master's  plate.  East,  P.  C.,  and 
2  Stark,  supra.  So  if  the  servant  has  the  goods  for  a  specific  purpose,  as 
where  money  had  been  delivered  to  a  servant  to  be  delivered  to  a  third 
person,  and  he  spent  a  part,  and  embezzled  the  rest.  Rex  v.  Lavenden, 
East,  C.  P.  566.  So  where  a  carter  went  away  with  his  master's  cart,  it 
was  held,  that  he  was  guilty  of  felony.  Robinson's  case,  East,  P.  C. 
565.  Where  a  porter  was  sent  by  his  master  with  goods  to  be  delivered 
to  a  customer,  and  he  broke  open  the  parcel  and  sold  them,  it  was  held  to 
be  a  felony.  Rex  «.  Bass,  Leech,  285,  and  2  Stark,  sup. ;  and  this  is  pre- 
cisely the  case  of  Herman  v.  Drinkwater,  cited  above.  But  in  all  cases 
where  the  party  has  a  legal  possession  of  the  property  distinct  from  that 
of  the  owner,  he  is  not  guilty  of  felony  in  appropriating  the  goods,  unless 
the  possession  be  obtained  with  a  felonious  intent  to  steal  the  goods,  for 
then  the  party  acquires  no  legal  possession  against  the  owner,  for  the  law 
will  not  permit  him  to  take  advantage  of  his  own  wrong  ;  and  in  point  of 
law  no  contract  exists.  2  Siark.  Ev.  sup.  The  circumstances  may  be 
such,  that  the  fact  of  selling  the  goods,  is  primd  facie  evidence  of  an 
original  felonious  intent.  If  a  carrier  unpacks  the  goods,  the  very  act 
itself  determines  the  trust  possession,  and  the  subsequent  taking  is  feloni- 
ous, for  the  thing  commitied  to  his  trust  is  single  and  entire.  21  H.  8, 
pi.  14  ;  1  Hawk  c.  33,  §  5. 

1  Mr.  Greenleaf  says  :  "  To  the  general  rule,  in  regard  to  parties,  there 
are  some  exceptions,  in  which  the  party's  own  oath  may  be  received  as 
competent  testimony.  One  class  of  these  exceptions,  namely,  that  in 
which  the  oath  in  litem  is  received,  has  long  been  familiar  in  Courts  ad- 
ministering remedial  justice  according  to  the  course  of  the  Roman  Law, 
though  in  the  Common  Law  tribunals  its  use  has  been  less  frequent  and 
more  restricted.  The  oath  in  litem  is  admitted  in  two  classes  of  cases  ; 
first,  where  it  has  been  already  proved,  that  the  party  against  whom  it  is 
offered  has  been  guilty  of  some  fraud,  or  other  tortious  and  unwarrantable 
act  of  intermeddling  with  the  complainant's  goods,  and  no  other  evidence 
can  be  had  of  the  amount  of  damages  ;  and  secondly,  where,  on  general 
grounds  of  public  policy,  it  is  deemed  essential  to  the  purposes  of  justice. 
An  example  of  the  former  class  is  given  in  the  case  of  the  bailiffs,  who, 
in  the  service  of  an  execution,  having  discovered  a  sum  of  money  secretly 
hidden  in  a  wall,  took  it  away  and  embezzled  it,  and  did  great  spoil  to  the 
debtor's  goods  ;  for  which  they  were  holden  not  only  to  refund  the  money, 


456  LAW   OF   CARRIERS.  [CH.  X. 

has  been  held,  that  a  bailor,  though  a  plaintiff,  maybe  a  com- 
petent witness  to  prove  the  particular  contents  of  a  trunk, 
lost  not  by  the  carrier's  fraud,  but  through  his  negligence; 
that  is,  if  a  foundation  be  first  laid  for  the  party's  oath  down 
to  the  period  to  which  the  parly  is  to  speak  ;  as  by  proving 
the  delivery  of  the  trunk  to  the  carrier,  and  the  loss  of  it  by 
his  negligence.1  Yet  it  is  proper,  that  the  admission  of  such 
testimony  should  be  limited  to  clothing  and  personal  orna- 
ments. In  Pudor  v.  Boston  and  Maine  Railroad  Co.2  the 
plaintiff  had  laid  the  foundation  of  his  action  by  proving  that 
he  had  delivered  to  the  company  a  box  to  be  carried  to  a 
certain  place  ;  that  the  box  was  not  delivered  by  the  carrier ; 
that  he  had  made  a  demand  thereof;  and  that  the  defendant 
admitted  its  loss.  He  then  offered  to  show,  by  his  own  tes- 
timony, (it  not  appearing  that  he  had  any  other  means  of 
showing  it)  what  Was  in  the  box,  and  the  value  of  the  arti- 
cles ;  but  as  the  declaration  alleged,  that  the  box  contained 
medical  books,  medicines,  surgical  instruments,  and  chemical 
apparatus,  it  was  held  that  the  party's  oath  was  inadmissible ; 
and  judgment  was  rendered  for  him  only  for  the  value  of  the 
box. 

§  478  a.  In  the  case  of  Clark  v.  Spence,  in  Pennsylvania, 
it  was  agreed,  that  the  party  may  by  his  own  oath  prove  the 
clothes,  and  even  the  personal  ornaments  contained  in  the 


but  to  make  good  such  other  damage  as  the  plaintiff  would  swear  he  had 
sustained.  Childrens  v.  Saxby,  1  Vern.  R.  207;  1  Eq.  Ca.  Ab.  299, 
S.  C.  So,  where  a  man  ran  away  with  a  casket  of  jewels,  he  was  or- 
dered to  answer  in  equity,  and  the  injured  party's  oath  was  allowed  as 
evidence,  in  odium  spoliatoris.  Anon,  in  E.  Ind.  Co.  v.  Evans,  1  Vern. 
R.  308."  1  Greenl.  Ev.  §  348.  Mr.  Greenleaf  then  adds,  that  the  rule 
is  the  same  at  Law,  and  he  cites  Herman  v.  Drinkwater,  ub.  sup.,  and 
refers  to  Sneider  v.  Geiss,  1  Yeates,  (Penn.)  R.  34. 

1  Clark  v.   Spence,  10  Watts,  (Penn.)  R.  335;  Bingham  v.  Roger 
6  Watts  &  S.  (Penn.)  R.  495  ;  McGill  v.  Rowand,  3  Barr.  (Penn.)  R. 
342,  451  ;  and  1  Greenl.  Ev.  §  348,  349. 

2  Pudor  w.  Boston  and  Maine  Railroad  Co.  13  Shep.  (Me.)  R.  458. 


CH.  X.]  ACTIONS  AGAINST.  —  EVIDENCE.  457 

trunk  containing  the  clothing  of  a  passenger.1  But  where 
these  clothes  are  set  at  a  very  high  value,  or  the  ornaments 
are  very  numerous  and  estimated  at  high  prices,  it  may  be 
necessary  to  require  some  proof,  that  the  party  alleging  the 
loss  actually  possessed  such  articles  of  such  price  when  at 
home,  and  neither  sold  them  nor  left  them  at  home,  or  the 
place  of  his  or  her  last  residence.2  If  the  plaintiff  must  in 
every  other  instance  prove  his  case  by  legal  evidence,  Courts 
should  be  careful  not  to  extend  the  exception  beyond  its 
legitimate  limits.  It  is  admitted  from  necessity,  and  perhaps 
on  a  principle  of  convenience,  because  every  one  does  not 
show  what  he  puts  in  a  box  ;  and  it  applies  with  great  force 
to  wearing  apparel,  and  to  every  article  which  is  necessary  or 
convenient  to  the  traveller,  which  in  most  cases  are  packed  by 
the  party  himself,  or  his  wife,  and  which,  therefore,  would 
admit  of  no  other  proof.  A  lady's  jewelry  would  come 
within  this  class,  and  it  is  easier  to  conceive  than  to  enume- 
rate other  articles  which  come  within  the  same  category. 
But  it  must  not  be  understood,  that  such  proof  can  be  ad- 
mitted, merely  because  no  other  evidence  of  the  fact  can  be 
obtained  ;  for,  if  a  merchant,  sending  goods  to  his  corres- 
pondent, chooses  to  pack  them  himself,  his  omission  to  fur- 
nish himself  with  the  ordinary  proof,  is  no  reason  for  dis- 
pensing with  the  rule  of  evidence  which  requires  disinterested 
testimony.  Such  omission  is  not  of  the  usual  course  of 
business,  aud  there  must  be  something  peculiar  and  extraor- 
dinary in  the  circumstances  of  the  case,  which  would  justify 
the  Court  in  admitting  the  oath  of  the  party.3 

§  479.  The  principle  of  necessity  which,  in  Pennsylvania, 
enables  a  party,  under  particular  circumstances,  to  be  a  wit- 
ness, to  prove  the  contents  of  a  lost  trunk  or  box,  applies 
with  as  much,  if  not  greater  force,  to  the  wife  as  well  as  to 


1  Clark  v.  Spence,  ub.  sup. 

2  Bingham  v.  Rogers,  ub.  sup. 

3  Clark  t>.  Spence,  ub.  sup. 

39 


458  LAW  OF    CARRIERS.  [CH.  X. 

the  husband.  Either  may  be  admitted  to  prove  the  quantity 
and  value  of  the  wearing  apparel  belonging  to  each,  (includ- 
ing in  the  catalogue  the  wife's  jewelry,  and  every  other 
article  pertaining  to  her  wardrobe,)  that  may  be  necessary  or 
convenient  to  either  in  travelling.  The  wife  usually  packs 
her  husband's  trunk,  and  always  her  own,  and  therefore,  to 
say  she  cannot,  in  a  proper  case,  be  a  witness,  would  amount 
almost  to  a  repeal  of  the  rule,  and  in  most  cases  to  a  denial 
of  justice.1 

§  480.  In  actions  under  the  statute  of  "Winton  before  men- 
tioned, the  loss  was  by  robbery,  and  the  action  in  the  before 
mentioned  case  of  Herman  v.  Drinkwater,  there  was  a  tort- 
ious  or  fraudulent  taking  away  ;  but  where  there  is  a  loss  not 
happening  by  robbery  or  fraud,  and  the  case  is  simply  a  case 
of  negligence  in  the  carrier,  it  has  been  held,  (contrary  to 
the  decisions  above  referred  to  in  Pennsylvania,  by  the 
Supreme  Court  of  Massachusetts,)  that  such  a  case  is  not 
brought  within  any  exception  to  the  general  Common  Law 
rule  of  evidence  ;  and  that  Court  have  been  of  opinion,  that 
to  admit  the  plaintiff's  oath  in  cases  of  the  last  mentioned 
nature  would  lead  to  much  greater  mischiefs,  in  the  tempta- 
tion to  frauds  and  perjuries,  than  can  arise  from  excluding 
it.  In  an  action  against  a  railroad  company  to  recover 
damages  for  the  loss  of  a  trunk,  the  Court  accordingly 
decided,  that  the  plaintiff  was  not  a  competent  witness  to 
prove  the  contents  of  the  trunk,  although  he  had  no  other 
evidence.  In  giving  the  opinion  of  the  Court,  Hubbard,  J. 


1  Per  Rogers,  J.,  in  delivering  the  opinion  of  the  Court  in  McGill  ». 
Rowand,  3  Ban.  (Penn.)  R.  451.  The  evidence  of  the  plaintiff's  wife 
in  this  case  was  admitted,  as  to  the  list  of  the  articles  in  her  own  and  her 
husband's  trunk ;  and  also  the  evidence  of  the  husband  as  to  the  list  of 
articles  in  his  own  trunk,  with  the  values  annexed.  In  the  catalogue  tes- 
tified to  and  valued  by  the  wife,  were  a  valuable  diamond  breast-pin,  a  gold 
breast-pin,  and  a  miniature  set  in  gold,  with  chain. 


CH.  X.] 


ACTIONS   AGAINST.  —  EVIDENCE. 


459 


remarked  as  follows :  "  If  the  party  about  to  travel  places 
valuable  articles  in  his  trunk,  he  should  put  them  under  the 
special  charge  of  the  carrier,  with  a  statement  of  what  they 
are,  and  of  their  value,  or  provide  other  evidence,  before- 
hand, of  the  articles  taken  by  him.  If  he  omits  to  do  this, 
he  then  takes  the  chance  of  loss,  as  to  the  value  of  the  arti- 
cles, and  is  guilty,  in  a  degree,  of  negligence  —  the  very 
thing  with  which  he  attempts  to  charge  the  carrier.  Occa- 
sional evils  only  have  occurred,  from  such  losses,  through 
failure  of  proof;  the  relation  of  carriers  to  the  party  being 
such,  that  the  losses  are  usually  adjusted  by  compromise. 
And  there  is  nothing  to  lead  us  to  innovate  on  the  existing 
rules  of  evidence.  No  new  case  is  presented  ;  no  facts 
which  have  not  repeatedly  occurred  ;  no  new  combination 
of  circumstances."  * 

§  481.  The  difficulty  in  respect  to  restricting  the  quantity 
or  value  of  the  articles  that  may  be  deemed  proper  or  useful, 
as  a  traveller's  baggage,  for  his  or  her  ordinary  purposes,  is 
admitted  in  Pennsylvania.  The  subject,  it  is  there  consid- 
ered, is  susceptible  of  no  precise  or  definite  rule  ;  but  it  is 
held,  that  when  there  is  an  attempt  to  abuse  the  privilege 
in  question,  it  is  to  be  left  to  the  intelligence  and  integrity  of 
the  jury  to  apply  the  proper  corrective.2  The  naked  ques- 
tion in  David  v.  Moore,3  was  whether  the  plaintiff  was  a 
competent  witness  to  prove  that  he  had  money  (the  sum  of 
$75)  in  his  trunk,  which  was  cut  from  the  stage-coach  of 
the  defendants,  in  which  the  plaintiff  was  a  passenger  ;  and 
it  was  held,  that  he  was  not.4 


1  Snow  v.  Eastern  Railroad  Company,  12  Met.  (Mass.)  R.  44.     The 
trunk  in  question  contained  wearing  apparel,  books,  and  twenty-five  dollars 
in  money. 

2  McGill  v.  Rowand,  3  Barr,  (Penn.)  R.  342,  451. 

3  David  v.  Moore,  2  Watts  &  S.  (Penn.)  R.  230. 
See  ante,  §  115,  116. 


460 


LAW   OF   CARRIERS. 


11.  Damages. 


[CH.  x. 


§  482.  The  amount  of  damages  to  be  recovered  where 
goods  are  intrusted  to  a  carrier,  and  they  are  not  delivered 
according  to  his  undertaking,  depends  upon  his  liability  being 
established,  either  to  answer  for  the  whole  value,  or  only  to 
the  extent  to  which  he  has  succeeded  in  limiting  his  respon- 
sibility by  notice.  The  general  rule,  in  the  former  case,  is, 
that  the  value  of  the  goods  is  the  measure  of  damages.1  But, 
as  Mr.  Sedgwick  says,  the  question  at  once  arises,  whether 
that  value  is  to  be  computed  at  the  place  where  delivered  to 
the  carrier,  or  at  the  place  of  destination.  It  seems,  says 
that  author,  to  be  well  settled,  that  the  measure  of  damages, 
is  the  value  of  the  goods  at  the  latter  place  ;  and  that  this 
sometimes  involves  an  inquiry  into  foreign  markets,  and  will 
generally  include  the  profits  of  the  adventure  ;  and  that  it  has 
been  rightly  held,  that  nothing  less  will  satisfy  the  contract.2 
The  principle,  as  to  the  obligation  of  the  carrier  to  respond 
conformably  to  the  measure  of  damages  thus  stated,  is  hap- 
pily illustrated  by  C.  J.  Tilghman,  in  giving  the  opinion  of 
the  Court,  in  Gillingham  v.  Dempsey  : 3  "  If  we  consider  it," 
says  he,  "  upon  principle,  the  damage  to  the  plaintiff  is  the 
loss  he  has  suffered  by  the  non-delivery  of  his  goods  at  the 
place  of  destination,  and  that  loss  is  the  net  price  which  the 
goods  would  have  brought  at  that  place.  In  insurance,  the 
law  is  so  well  known,  that  the  merchant  who  wishes  to 
cover  himself  to  the  amount  of  his  goods  at  the  port  of  des- 
tination may  do  so,  by  valuing  them  in  the  policy  accord- 
ingly, or  by  a  special  insurance  on  profits.  But  this  is  never 
done  in  contracts  for  carriage  —  an  argument  of  some  weight, 
that  it  has  been  supposed  the  plaintiff  may  recover  according 


1  Sedgwick  on  Meas.  of  Dam.  370  ;  Ludwig  v.  Meyre,  5  Watts  &  S. 
(Penn.)  R.  435  ;  Hand  v.  Baynes,  4  Whart.  (Penn.)  R.  204. 
a  Sedgwick,  ub.  sup. 
3  Gillingham  v.  Dempsey,  12  S.  &  Rawle,  (Penn.)  R.  188. 


CH.  X.]  ACTIONS  AGAINST.  —  DAMAGES.  461 

to  the  value  at  the  port  of  destination.  Then,  if  we  consider 
the  policy  which  should  regulate  these  contracts,  it  is  best  to 
remove  from  the  carrier  all  temptation  to  fraud,  which  will  be 
best  done  by  making  himself  answerable  for  the  value  at  the 
port  of  delivery.  If  the  goods  should  be  of  increased  value 
at  the  place  of  delivery,  as  they  generally  are,  and  the  lia- 
bility extends  no  farther  than  the  value  at  the  place  of  ship- 
ment, there  is  very  great  temptation  to  fraud ;  and  it  will  be 
extremely  difficult  for  the  plaintiff  to  prove,  whether  the  loss 
happened  by  fraud,  negligence,  or  unavoidable  accident." 
The  learned  Judge  said  in  addition  :  —  "It  would  require 
very  strong  authority  to  satisfy  me,  that  where  the  carrier 
fraudulently  disposed  of  the  goods  at  the  place  of  delivery, 
and  made  great  profit  thereby,  he,  or  his  principal,  should  be 
responsible  for  no  more  than  the  value  at  the  place  where  he 
received  them.  It  may  be  said,  that  in  such  case  the  carrier 
himself,  if  the  fraud  could  be  proved,  would  be  liable  in  an 
action  of  trover,  for  damages,  to  the  full  amount  of  what  he 
made  by  his  fraud.  But  that  involves  the  plaintiff  in  the 
difficulty  of  proving  the  fraud,  and  besides,  the  carrier  him- 
self is  often  worth  nothing,  and  his  principal  the  only  person 
looked  to,  would  not  be  answerable  in  trover."  Such  seems 
clearly  to  be  the  doctrine  in  England.1 

§  483.  The  above  case  of  Gillingham  v.  Dempsey  was  an 
action  on  a  bill  of  lading  against  T.  D.  by  which  he  engaged 
to  carry  certain  crates  of  earthen  ware  belonging  to  the  plain- 
tiff, from  the  port  of  Liverpool  to  the  port  of  Philadelphia, 
and  it  appeared,  that,  in  consequence  of  not  stowing  them 
properly,  some  of  the  crates  were  crushed  by  the  weight  of 
those  above.  The  jury  found  a  verdict  for  the  plaintiff, 


1  la  an  action  of  assumpsit  against  the  defendants  as  owners  of  the 
Helena,  for  not  delivering  a  cargo  of  wheat  shipped  to  the  plaintiffs,  the 
cargo  reached  the  port  of  discharge,  but  was  not  delivered,  and  the  price 
of  the  cargo  at  the  time  it  reached  its  port  of  destination,  was  held  to  be 
the  rule  of  damages.  Brandt  «.  Bowlby,  2  B.  &  Adol.  R.  933. 
39* 


462  LAW   OF   CARRIERS.  [CH.  X. 

subject  to  the  opinion  of  the  Court,  on  a  point  reserved, 
namely,  whether  the  loss  of  the  plaintiff  was  to  be  estimated 
at  the  first  cost  of  the  article,  at  the  port  of  embarkation,  or 
at  the  market  price  at  the  time  of  delivery  at  the  port  of 
destination.  It  was  held,  (C.  J.  Tilghman  delivering  the 
opinion  of  the  Court,)  that  the  measure  of  damages  was  the 
net  value  of  the  goods  at  the  port  of  destination.1  In  a 
more  recent  case  in  Pennsylvania,  it  was  held,  that  the 
measure  of  damages  is  the  value  of  the  article  lost,  at  the 
place  to  which  it  is  consigned.2  In  O'Connor  v.  Foster,  in 
the  same  State,3  in  an  action  for  a  breach  of  contract  to 
carry  wheat  from  Pittsburg  to  Philadelphia,  the  difference 
between  the  value  of  the  wheat  at  Pittsburg,  with  the  freight 
added,  and  the  market  price  at  Philadelphia,  at  the  time  it 
would  have  arrived  there,  if  carried  according  to  contract, 
was  held  to  be  the  measure  of  damages.  There  was  no 
reason,  the  Court  asserted,  why  carriers,  who  engage  with 
merchants  to  transport  merchandise,  should  not  be  held  to  a 
strict  performance  of  their  engagements  ;  and  that  this  is  to 
be  done  by  obliging  them  to  indemnify  the  shippers  fully. 

§  484.  In  New  York,  where  a  suit  was  brought  on  an 
agreement  to  carry  a  quantity  of  salt  from  Oswego  to 
Queenstown,  the  difference  in  value  of  the  article  at  Oswego 
and  at  Queenstown  at  the  time,  was  held  the  true  rule  of 
damages.4  The  same  rule  was  laid  down  in  New  York  in 
an  action  against  the  master  of  a  vessel  where  the  goods 
had  been  embezzled  on  the  voyage,  without  fraud  on  the 
part  of  the  defendant ;  and,  in  this  case,  the  Court  held  the 
following  language  in  respect  to  interest :  —  "  The  question 
of  interest  depends  on  circumstances.  The  jury  may  give 
interest  by  way  of  damages,  in  cases  in  which  the  conduct  of 


1  Gillingham  v.  Dempsey,  vb,  sup. 

2  Warden  v.  Greer,  6  Watts,  (Penn.)  R.  424. 

3  O'Connor ».  Foster,  10  Watts,  (Penn.)  R.  418. 
*  Bracket  v.  McNair,  14  Johns.  (N.  Y.)  R.  170. 


CH.  X.]  ACTIONS   AGAINST. — DAMAGES.  463 

the  master  was  improper.  But  here  no  bad  conduct  is  to  be 
imputed  to  him  ;  and  interest  is  not,  in  every  case,  and  of 
course,  recoverable,  because  the  amount  of  the  loss  is  un- 
liquidated, and  sound  in  damages  to  be  assessed  by  the 
jury."  J 

§  485.  Where  the  defendant  contracted  to  carry  fifty  tons 
of  the  plaintiff's  hay  to  a  distant  port  for  sale,  the  hay  to  be 
delivered  at  the  ship's  side,  and  after  receiving  twenty-four 
tons  on  board,  declined  taking  any  more,  because  the  ship 
was  full,  it  was  held,  that  it  was  not  necessary  for  the  plain- 
tiff, after  this  refusal,  to  tender  the  residue  of  the  hay  at  the 
ship's  side,  in  order  to  entitle  himself  to  damages  ;  and  that 
the  rule  of  damages,  was  the  difference  between  what  the 
plaintiff  in  fact  received,  or  with  due  diligence  and  prudence 
might  have  obtained  for  the  hay  left  in  his  hands,  and  the 
price  at  the  port  of  destination,  deducting  freight  and 
expenses.2 

§  486.  Where  a  libel  in  the  Admiralty  was  filed  against 
a  vessel  for  the  non-delivery  by  the  master  of  a  cargo  at 
Velasco,  it  appeared,  that  the  vessel  arrived  out,  and  that, 
the  consignee  refusing  to  receive  it,  the  master,  contrary  to 
his  duty,  carried  it  on  to  New  Orleans.  It  was  held,  that 
the  libellants  were  entitled  to  recover  the  actual  value  at 
Velaseo,  at  the  time  when  the  cargo  should  have  been  landed 


1  Watkinson  v.  Laughton,  8  Johns.  (N.  Y.)  R.  213.     The  same  rule 
with  the  same  modification  in  respect  to  interest,  was  laid  down  in  Amory 
v.  McGregor,  15  Johns.  (N.  Y.)  R.  24.     The  defendant,  a  common  car- 
rier, had  undertaken  to  carry  by  water  certain  merchandise  from  Cincinnati 
to  Tiptonsport,  on  the  Wabash  river  ;  the  measure  of  damages  was  held 
to  be  the  wholesale  value  of  the  merchandise  at  the  place  to  which  they 
were  to  be  carried,  deducting  the  price  of  freight.     Wallace  v.  Vigus, 
4  Black.  (Ind.)  R.  260.     The  rule  was  held  to  be  the  same  in  Ohio  in 
McGregor  v.  Kilgore,  6  Ohio  R.  143. 

2  Nourse  ».  Snow,  6  Greenl.  (Me.)  R.  208. 


464  LAW    OF    CARRIERS.  [CH.  X. 

there,  deducting  all  duties  and  charges,  and  the  freight  for 
the  voyage,  as  if  the  cargo  had  been  duly  landed.  Mr.  J. 
Story,  in  this  case,  said,  that  the  rule  adopted  in  prize  cases, 
of  an  addition  of  ten  per  cent,  to  the  price  cost  of  the  cargo, 
did  not  apply  to  cases  like  this  ;  that  rule  ordinarily  suppos- 
ing, that  the  vessel  has  been  captured  before  she  arrived  at 
the  port  of  destination,  and  the  Court  making  the  presump- 
tion of  the  additional  value  of  ten  per  cent,  in  odium  spolia- 
toris.1 

§  487.  The  case  of  Bridge  v.  Austin,  in  Massachusetts, 
was  decided  upon  its  own  peculiar  circumstances.  It  was 
an  action  against  the  defendant  for  receiving  the  plaintiff's 
goods  as  his  bailiff,  and  taking  on  himself  to  carry  them 
safely  from  Boston  to  Charleston,  in  South  Carolina.  The 
defendant  engaged  to  dispose  of  them,  at  Charleston,  on 
account  of  the  plaintiff,  and  pay  him  the  proceeds,  and 
expressly  took  upon  him  all  risks,  except  those  of  the  sea, 
and  was  to  have  a  commission  of  Jive  per  cent.  It  was  also 
an  important  circumstance,  that  the  goods  (a  box  of  linens) 
were  declared  in  the  defendant's  written  receipt  and  engage- 
ment, to  amount  to  the  sterling'  cost  of  eighty-four  pounds, 
six  shillings  and  one  farthing.  The  linens  arrived  safe,  and 
were  delivered  by  the  captain  to  the  defendant  at  Charleston, 
where  they  were  stolen,  without  his  fault,  before  he  had  an 
opportunity  of  selling  them.  He  was  held  to  be  liable  ac- 
cording to  their  value  at  Boston,  deducting  Jive  per  cent,  com- 
mission. In  this  case  the  defendant  was  supercargo,  and  his 
engagement  seems  to  have  been  in  the  nature  of  an  insurance 
in  a  valued  policy.2 

§  488.  As  it  respects  the  mode  in  which  the  value  of  the 


1  Arthur  v.  Schooner  Cassius,  2  Story,  (Cir.  Co.)  R.  81. 

2  Bridge  v.  Austin,  4  Mass.  R.  115,  and  comment  on  the  decision  by 
C.  J.  Tilghman  in  Gillingham  v.  Dempsey,  12  S.  &  Rawle,  (Penn.)  R. 
187. 


CH.  X.]  ACTIONS   AGAINST.  —  DAMAGES.  465 

article  is  to  be  arrived  at,  the  fair  test  of  its  value,  and  con- 
sequently of  its  loss  to  the  owner,  (assuming  that  there  is  no 
defect  in  the  quality,)  is  its  price  at  the  time  in  the  market. 
Thus,  in  an  action  against  a  common  carrier  for  negligently 
transporting  mulberry  trees  of  the  Alpine  species,  the  market 
value  of  the  trees  at  the  time,  however  fictitious,  was  held  the 
standard  of  damages  ;  and  that  the  range  of  prices  in  the 
entire  market,  and  the  average  thus  found,  was  the  lest,  and 
not  any  sudden  inflation.1 

§  489.  Where  a  box  of  gold  sovereigns  was  shipped  to  be 
carried  for  hire  from  New  York  to  Mobile,  and  the  vessel 
was  wrecked  on  the  "  Hondu  Reefs,"  and  the  box  was  lost, 
in  a  libel  in  the  Admiralty  to  recover  its  value  against  the 
captain  and  owners,  the  libellants  asked  to  have  the  value 
of  the  sovereigns  allowed  them  as  if  the  coin  had  arrived  at 
Mobile.  But  it  was  held,  that,  as  the  sovereigns  were  not 
carried  to  Mobile,  and  might  never  have  arrived  there,  the 
true  test  was  their  value  at  Key  West,  with  interest  upon  the 
value  from  the  time  when  proceedings  for  salvage  were  insti- 
tuted at  Key  West.  That  dale  was  adopted  as  allowing  the 
captain  full  lime,  to  have  ascertained  all  the  facts  which 
were  within  the  reach  of  an  interesled  and  vigilant  master 
and  owner.2 

§  490.  In  case  of  the  acceptance  of  the  goods  short  of  the 
place  of  destination,  that  is  no  bar  to  an  action  for  damages 
which  before  arose  from  the  carrier's  negligence ;  but  the 
acceptance  may  be  given  in  evidence  in  mitigation  of  dam- 
ages, so  as  to  limit  the  recovery  to  the  actual  loss  suslained 
by  ihe  owner.3 

§  490  a.  For  a  non-delivery  of  goods  within  a  reasonable 


1  Smith  v.  Griffith,  3  Hill,  (N.  Y.)  R.  333. 

2  King  v.  Shepherd,  3  Story,  (Cir.  Co.)  R.  349. 

3  Bowman  v.  Teall,  23  Wend.  (N.  Y.)  R.  306  ;  and  see  ante,  §  333. 


466  LAW   OF   CARRIERS.  [CH.  X. 

time,  the  carrier  of  them  is  only  responsible  for  reasonable 
consequences  of  his  breach  of  contract.  Thus,  where  the 
plaintiff  sent  certain  goods  by  the  defendants,  who  were  car- 
riers, to  be  delivered  at  a  particular  place  on  a  particular  day, 
so  as  to  be  ready  for  market  on  another  particular  day,  but 
did  not  give  notice  they  were  sent  for  that  purpose  ;  and  on 
that  day  the  plaintiff's  clerk  went  there,  and  owing  to  the 
non-delivery  of  the  goods  in  season,  he  removed  them  to 
another  place  for  sale  ;  it  was  held,  in  an  action  for  the  non- 
delivery of  the  goods  in  a  reasonable  time,  that  the  expenses 
so  incurred  might  be  given  by  the  jury  in  damages.  Whether 
the  expenses,  in  such  case,  are  reasonable  or  not,  is  entirely 
a  question  for  the  jury.1  If  goods  are  injured  in  their  transit 
from  A.  to  B.,  or,  if,  after  their  arrival  at  the  latter  place, 
and  before  storage  ;  the  measure  of  damages,  of  course,  is 
the  difference  between  the  value  of  the  goods  when  delivered 
to  the  carrier,  and  the  value  of  them  in  their  damaged  condi- 
tion, when  received  by  the  consignee  at  B.2 

12.   The  Parlies  to  sue. 

§  491.  The  general  rule  of  law  in  respect  to  all  actions  is, 
that  the  action  should  be  brought  in  the  name  of  the  person 
whose  legal  right  has  been  affected  ;  a  rule  necessary  to  be 
observed,  in  order  that  the  party  suing  shall  not  be  compelled 
to  abandon  his  suit  after  having  incurred  great  expense.3  This 
general  rule  renders  it  important,  before  commencing  an  ac- 
tion against  a  carrier  for  his  negligence  or  default  in  the  con- 
veyance of  goods,  to  be  particular  in  ascertaining  in  whom 
the  property  in  the  goods  is  vested  ;  for,  by  assumption  of 
law,  he  is  the  person  who  sustains  the  loss,  and  therefore, 
unless  such  inference  of  law  is  contradicted  by  the  particular 
facts  of  the  case,  he  is  the  party  to  demand  compensation 


1  Black  v.  Baxendale,  1  Welsh.  Hurlst.  &  Gordon,  R.  401,Exch. 

2  McHenry  v.  Railroad  Company,  4  Harring.  (Del.)  R.  448. 

3  See  1  Chitt.  PI.  I,  el  seq. 


CH.  X.]  ACTIONS  AGAINST.  —  PARTIES   TO   SUE.  467 

from  him  by  whom  he  has  been  injured.  There  may  be  a 
special  property  in  a  third  person,  or  a  special  contract  be- 
tween the  consignor  of  goods  and  the  carrier,  which  will 
rebut  the  presumption  referred  to  ; 1  but  otherwise  the  action 
must  be  brought  in  the  name  of  the  owner  of  the  property. 
Thus,  if  a  lather  send  a  present  to  his  child  by  a  carrier,  and 
it  is  lost,  the  father  cannot  maintain  an  action  as  owner ;  but 
the  action  must  be  brought  in  the  name  of  the  child.2 

§  492.  In  general  a  mere  servant  or  agent  with  whom  a 
contract  is  made  on  behalf  of  another,  and  who  has  no  direct 
beneficial  interest  in  the  transaction,  cannot  support  an  action 
thereon  ;  but  if  he  has  a  beneficial  interest  in  the  performance 
of  the  contract,  or  a  special  property  or  interest  in  the  sub- 
ject-matter of  the  agreement,  he  may  support  an  action  in 
his  own  name  upon  the  contract,  as  in  the  case  of  a  factor,  or 
broker,  or  a  warehouseman,3  or  carrier,4  or  captain  of  a  ship 
for  freight.5  An  agent  in  England,  shipping  goods  to  the  for- 


1  Freeman  v.  Birch,  1  Nev.  &  Man.  R.  426;  and  see  opinion  of  Gib- 
son, J.,  in  Griffith  v.  Ingledew,  6  S.  &  Rawle,  (Penn.)  R.  429  ;  and  the 
point  stated  will  be  more  fully  explained,  post. 

2  2  Steph.  N.  P.  990.     In  Hunter  v.  Westbrook,  2  C.  &  Payne,  R. 
578,  a  father  gave  his  son  a  watch,  and  several  articles  of  wearing  ap- 
parel :  —  It  was  held,  that  though  the  son  was  under  age,  viz.  about  six- 
teen years  old,  the  father  could  not  maintain  trover  against  a  person  who 
detained  the  property,  because  the  right  of  possession  was  not  in  him,  but 
in  his  son  ;  and  Abbott,  C.  J.,  observed,  "  I  believe  it  has  been  held,  that 
things  stolen  from  a  child  may  be  laid  to  be  the  property  of  the  parent ; 
but  I  think  that  has  been  the  case  in  very  young  children.'1     So  also  in 
Smith  v.  Birch,  7  Ibid.  401,  it  was  held,  that  if  a  father  make  to  a  son 
under  age,  an  absolute  gift  of  an  article  of  dress  or  ornament,  e.  g.  a 
watch,  he  cannot  afterwards,  without  that  son's  consent,  reclaim  the  gift ; 
Mr.  J.  Vaughn  observing,  "  If  the  father  had  made  an  absolute,  solemn, 
and  irrevocable  gift  of  the  watch  to  his  son  the  plaintiff,  and  the  plaintiff 
had  accepted  it,  the  law  would  not  allow  the  father,  without  the  consent 
of  the  son,  afterwards  to  reclaim  the  gift." 

3  1  Chitt.  PI.  7. 

4  Ante,  §  348. 

5  Shields  u.  Davis,  6  Taunt.  R.  65 ;  Brown  v,  Hodgson,  4  Ib.  189. 


468  LAW   OF   CARRIERS.  [CH.  X. 

eign  principal,  and  paying  the  freight,  can  maintain  an  action 
on  the  bill  of  lading,  if  it  express  that  the  goods  were  ship- 
ped by  the  agent,  and  that  the  freight  was  paid  in  England  ; 
because  a  privity  of  contract  is  established  between  the  par- 
ties by  means  of  the  bill  of  lading.1  In  case  of  a  bailment, 
it  is  clear,  that  the  bailee  has  such  a  continuing  interest  in  the 
goods,  until  their  arrival  at  the  place  of  destination,  as  to  en- 
title him  to  sue  the  carrier,  in  case  they  are  lost  or  damaged 
on  their  passage.  Thus,  in  Freeman  v.  Birch,2  (which  was 
an  action  on  the  case  against  a  carrier  for  negligence,)  at  the 
trial  before  Patteson,  J.,  it  appeared  that  the  plaintiff,  a  laun- 
dress at  Hammersmith,  was  in  the  habit  of  sending  linen  to 
and  from  London  by  the  defendant's  cart,  which  travelled 
from  Chiswick  to  London  ;  on  one  occasion  a  basket  of  linen 
belonging  to  one  S.  was  sent  by  the  defendant's  cart,  and  on 
its  way  to  London,  parts  of  the  contents  were  either  lost  or 
stolen.  S.  did  not  pay  the  carriage  of  the  linen  ;  and  it  was 
objected  on  the  part  of  the  defendant,  that  the  present  action 
was  misconceived,  and  that  the  action  should  have  been 
brought  by  the  owner  of  the  linen.  The  learned  Judge 
overruled  the  objection,  and  a  verdict  was  found  for  the 
plaintiff.  Subsequently,  a  motion  was  made  for  a  new  trial, 
on  the  ground  of  misdirection,  which  the  Court  of  Queen's 
Bench,  however,  refused,  on  the  ground  that,  under  the  cir- 
cumstances, the  bailee  must  be  taken  to  retain  a  special  pro- 
perty in  the  goods  sufficient  to  support  the  action. 

§  493.  Upon  the  decision  in  the  case  last  cited  of  Freeman 
v.  Birch,  it  has  been  remarked  :  "  Though  it  clearly  estab- 
lishes the  right  of  the  bailee  to  sue,  yet  this  must  not  be 
understood  necessarily  to  exclude  the  bailor  from  the  exercise 
of  a  similar  right ;  supposing,  that  is  to  say,  he  chooses  to 
step  in  and  anticipate  the  bailee  in  bringing  an  action ;  a  con- 
clusion which  seems  to  be  deducible  from  the  general  state 

1  Joseph  v.  Knox,  3  Campb.  R.  320. 

2  Freeman  v.  Birch,  1  Nev.  &  Man,  R.  420. 


OH.  X.]  ACTIONS   AGAINST.  —  PARTIES   TO  SUE.  469 

and  condition  of  property  under  bailment,  which  is,  as  it 
were,  in  dubio  between  the  parties,  and  vested  for  some  pur- 
poses in  the  bailee,  and  for  some  in  the  bailor.  The  right  of 
property  being  thus  floating  and  undetermined,  it  seems  to 
follow,  that  the  right  of  action  which  arises  from  it,  must 
partake  of  the  same  properties,  and  must  so  continue  until 
it  is  finally  fixed  and  determined  by  one  or  the  other  party 
appropriating  it  to  himself."  1  It  cannot  indeed  be  denied, 
that  the  right  of  an  agent  or  a  bailee  having  a  special  pro- 
perty in  the  goods  which  are  the  subject-matter  of  the  trans- 
action, to  sue  for  any  default  of  the  carrier  in  respect  to  them 
while  in  the  course  of  transportation,  is  subservient  to  the 
right  of  the  principal  to  interfere  and  bring  the  action,  in  ex- 
clusion of  the  agent's  or  bailee's  right.2  The  rule  in  such 
cases,  is  stated  by  Parke,  B.,  to  be,  that  either  the  bailor  or 
the  bailee,  in  such  cases,  may  sue  ;  and  whichever  first  ob- 
tains damages,  it  is  a  full  satisfaction.3 

§  494.  It  is  also  an  important  doctrine,  that  if  it  is  not 
expressed,  that  an  agent  contracts  in  behalf  of  another,  and 
the  name  of  the  principal  is  not  disclosed  by  h;m,  a  suit  may 
be  maintained  in  the  name  of  the  principal.  This  doctrine 
has  been  acknowledged  and  applied  in  a  number  of  instances  ;  4 
and  was  applied  in  the  case  of  a  common  carrier  in  Sander- 
son v.  Lamberton,  in  Pennsylvania.5  It  was  also  very  re- 
cently applied  by  the  Supreme  Court  of  the  United  States  in 
an  important  case  on  appeal  in  the  Admiralty,  in  which  the 
respondents  were  common  carriers  by  sea.  The  case  re- 
ferred to  originated  in  the  loss  of  the  Steamboat  "  Lexing- 


1  1  Waif,  on  Part,  to  Act.  35. 

2  1  Chin.  PI.  8. 

3  Nichols  v.  Bastard,  2  Cro.  Mees.  &  Ros.  R.  660. 

4  Among  others,  in  Sims  v.  Bond,  5  B.  &  Adol.  R.  393  ;  Hipgins  ». 
Senior,  8  M.  &  Welsh.  R.  834  ;  Taintor  v.  Prendergast,  3  Hill,  (N.  Y.> 
R.  72 ;  Lapham  v.  Greene,  9  Verm.  R.  407. 

5  Sanderson  v.  Lamberton,  6  Binn.  (Penn.)  R.  129,  and  ante,  $  466. 

40 


470  LAW   OF   CARRIERS.  [CH.  X. 

ton,"  with  the  cargo  on  board,  by  fire,  in  Long  Island  Sound, 
in  the  month  of  January,  1840  ;  but  the  decision  was  not 
made  until  the  December  term  of  that  Court,  1847.  The 
property  in  question  (a  large  amount  of  specie)  was  delivered 
to  one  H.,  an  "  express  "  forwarder,  for  transportation,  and 
by  him  delivered  for  that  purpose  to  the  New  Jersey  Steam 
Navigation  Company,  who,  with  other  steamboats,  run  the 
Lexington  to  and  from  New  York  and  Stonington.  It  was 
held,  that,  notwithstanding  the  contract  of  affreightment  was 
made  by  H.  with  the  company  personally,  and  without  dis- 
closing the  name  of  the  libellants  who  were  the  owners  of 
the  specie  lost,  the  suit  by  them  against  the  company  should 
be  sustained.1 

$  495.  The  question  in  respect  to  consignors  and  con- 
signees of  goods  forwarded  from  one  to  the  other,  and  as  to 
which  of  the  two  parties  is  the  proper  party  to  bring  the 
action  for  a  loss  or  non-delivery  of  the  goods  while  in  the 
course  of  transportation,  is  sometimes  one  of  much  nicety, 
and  has  therefore  occasionally  provoked  critical  discussion. 
The  carrier  must  be  liable  to  one  party  or  the  other,  and  if 
the  wrong  party  were  to  recover  against  him,  he  would  be 
liable  to  be  harassed  again.2  It  is  important  to  look,  in 
endeavoring  to  decide  which  is  the  proper  party,  to  the  state 
and  condition  of  the  property,  and  the  relation  in  which  the 
consignor  and  consignee  stand  to  it ; 3  for  neither  the  con- 
signor nor  consignee,  as  such,  is  the  proper  party  to  bring 
the  action.4  The  relations  in  which  they  stand  to  each 
other  may  be  reduced  to  three  general  heads.  1st.  Where 
the  entire  property  in  the  goods  remains  vested  in  the  con- 


1  New  Jersey  Steam  Navigation  Company  v.  Merchants  Bank,  6  How. 
(U.  S.)  R.  344,  and  Appx.  to  this  work,  p.  liv.,  and  ante,  §  466. 

2  Per  Williams,  J.,  in  Coatesw.  Chaplain,  3  Ad.  &  Ell.  R.  (N.  S.)  489. 

3  1  Waif,  on  Part,  to  Act.  31,  et  seq. 

4  See  opinion  of  Bronson,  J.,  in  Everett  v.  Saltu§,  15  Wend.  (N.  Y.) 
R.  474;  Law  v.  Hatcher,  4  Blackf.  (Ind.)  R.  364. ' 


CH.  X.]  ACTIONS   AGAINST.  —  PARTIES   TO   SUE.  471 

signer ;  2d.  where  it  is  in  the  consignee  ;  3d.  where,  as  in 
the  cases  which  have  already  been  cited,  both  are  interested, 
the  one  as  general,  and  the  other  as  special  owner.  In  the 
first  case,  the  law  presumes  the  consignor  to  be  the  party 
who  contracts  with  the  carrier,  and,  therefore,  vests  in  him 
all  rights  of  action  arising  out  of  such  contract.1  If  goods 
are  in  the  course  of  transmission  from  a  principal  to  an 
agent,  for  any  loss  or  damage  occurring  to  such  goods  in  the 
course  of  their  passage,  the  principal  would  seem  to  be  the 
proper  party  to  sue.2  Where  goods  are  sent  by  a  party 
merely  to  be  approved,  the  property  not  passing  to  the  con- 
signee until  he  receives  and  adopts  the  goods,  the  consignor 
is  entitled  to  bring  the  action  against  the  carrier  for  any 
breach  of  his  implied  undertaking  to  deliver  the  goods.3 
Thus,  a  coat  ordered  by  a  customer  resident  abroad,  without 
instruction  as  to  the  mode  of  conveyance,  and  which  was 
sent  through  by  the  tailor,  who  paid  the  freight,  and  the  coat 
being  lost  in  the  transit,  it  was  held,  that  the  vendor  was  the 
proper  party  to  sue  the  carrier.4 

§  496.  Again,  if  from  fraud,  or  non-compliance  with  the 
requisites  of  the  statute  of  frauds,  no  actual  sale  has  taken 
place,  so  as  to  transfer  the  right  of  property,  and  the  risk  of 
loss,  from  the  consignor  to  the  consignee,  the  consignor  is,  of 
course,  the  proper  party  to  maintain  the  action.  Thus, 
where  the  consignor  had  delivered  goods  to  a  carrier  in 
obedience  to  a  fictitious  order,  which  professed  to  come  from 
a  well  known  tradesman  of  respectability,  but  had  in  reality 
been  sent  by  a  swindler,  it  was  held,  that  as  no  bond  fide 


1  1  Waif,  on  Part,  to  Act.  33.     See  D'Wolf  v.  New  York  Fire  Ins. 
Co.  2  Johns.  (N.  Y.)  R.  214  ;  and  see  ante,  $  397. 

2  Wright  v.  Snell,  5  B.  Aid.  550;  Sargent  «.  Morris,  3  Ibid.  277; 
and  see  opinion  of  Gibson,  J.,  in  Griffith  v.  Ingledew,  6  S.  &  Rawle, 
(Penn.)  R.  429. 

3  Swain  v.  Shepherd,  1  M.  &  Rob.  R.  224. 

4  Goodwyn  v.  Douglas,  1  Cheves,  (S.  C.)  R.  174. 


472  LAW   OF   CARRIERS.  [CH.  X. 

sale  had  taken  place,  the  consignor  had  not  been  divested  of 
his  property  in  the  goods,  and  that  he  was,  therefore,  the 
proper  party  to  sue  the  carrier  for  a  neglect  of  duty  in  deliv- 
ering to  the  swindler,  who  applied  for  them  at  the  carrier's 
office,  instead  of  delivering  them  at  the  residence  of  the 
tradesman  to  whom  they  were  directed.1  So  if  a  tradesman 
sends  goods  of  the  value  of  £  10  and  upwards,  pursuant  to 
an  oral  order,  or  an  oral  contract  of  sale,  to  a  person  who 
has  not  given  "  earnest,"  or  made  a  part  payment,  or  ac- 
cepted any  part  of  the  goods,  and  the  contract  is  void  by 
reason  of  non-compliance  with  the  statute  of  frauds,  then, 
as  there  has  been  no  actual  sale,  so  as  to  transfer  the  right 
of  property  and  the  risk  of  loss  to  the  consignee,  the  con- 
signor is  the  party  to  sue  the  carrier.2 

§  497.  But  by  the  delivery  of  the  goods  to  a  carrier  on 
behalf  of  the  consignee,  and  if  they  have  been  placed  at  his 
absolute  disposal,  and  no  other  fact  appears,  the  legal  pre- 
sumption is,  that  he  is  the  true  owner,  and  the  property  in 
the  goods  then  becomes  immediately  vested  in  him  ;  and 
therefore,  in  the  event  of  a  loss,  he,  and  not  the  consignor, 
must  bring  the  action,  for  the  consignor  has  his  remedy 
against  the  purchaser.3  Lord  Alvanley  is  reported  to  have 
said,  that  it  appeared  to  him  a  proposition  as  well  settled  as 
any  in  the  law,  "  that  if  a  tradesman  order  goods  to  be  sent 
by  a  carrier,  though  he  does  not  name  any  particular  one, 
the  moment  the  goods  are  delivered  to  the  carrier,  it  operates 
as  a  delivery  to  the  purchaser  ;  the  whole  property  immedi- 
ately vests  in  him  ;  he  alone  can  bring  an  action  for  any 


1  Duff  v.  Budd,  6  Moore,  R.  469;  and  see  also  Stephenson  v.  Hart, 
4  Bing.  R.  476. 

2  Coates  v.  Chaplain,  3  Ad.  &  Ell.  R.  (N.  S.)  489;  Stockdale  v.  Dun- 
lop,  6  M.  &  Welsh.  R.  224. 

3  Vale  v.  Dale,  Cowp.  R.  294  ;  Dawes  v.  Peck,  8  T.  R.  330  ;  Everett 
v.  Saltus,  15  Wend.  (N.  Y.)  R.  474  ;  Richardson  v.  Dunn,  2  Ad.  &  Ell. 
R.  (N.  S.)  224  ;  Bonner  v.  Marsh,  10  Sme.  &  Marsh.  (Miss.)  R.  376. 


CH.  X.]  ACTIONS   A&AINST.  —  PARTIES  TO   SUE.  473 

injury  done  to  the  goods,  and  if  any  accident  happen  to 
them,  it  is  at  his  risk.  The  only  exception  to  the  purchaser's 
right  over  the  goods,  is  that  the  vendor,  in  case  of  the  former 
becoming  insolvent,  may  stop  them  in  Iransilu."  J  Under 
such  circumstances,  the  consignee  alone  must  bring  the 
action,  whether  the  carrier  be  a  carrier  by  land,  or  a  carrier 
by  water  ;  2  for  a  shipment  of  merchandise  in  the  possession 
of  a  master  of  a  vessel,  during  their  passage  from  a  consignor 
abroad  to  the  consignee  at  home,  according  to  the  agree- 
ment and  course  of  dealing  between  the  parties,  operates  as 
an  actual  delivery  to  the  purchaser.3  Where  the  purchaser 
of  goods  at  Naples  brought  an  action  against  the  carrier  for 
negligence  in  shipping  them  ;  the  plaintiff,  it  appeared,  sent 
an  order  to  M.  &  Sons,  of  Birmingham,  in  England,  for  the 
goods  in  question  to  be  dispatched  on  insurance  being  ef- 
fected, the  terms  to  be  three  months'  credit  from  the  time  of 
arrival.  On  the  part  of  the  defendant  it  was  contended, 
that,  as  the  goods  were  not  to  be  paid  for  until  three  months 
after  delivery,  they  were  not  at  the  purchaser's  risk  until  their 
arrival.  The  Court,  however,  considered  that  the  order  for 
insurance  was  decisive  as  to  the  point  that  the  goods  were  at 
the  plaintiff's  risk,  and  that,  therefore,  the  action  was  properly 
brought  in  his  name.4 

§  498.  But  in  England,  there  has  been  no   instance   in 


1  Dutton  v.  Solotnonson,  3  Bos.  &  Pull.  R.  584 ;  and  see  Jacobs  v. 
Nelson,  3  Taunt.  R.  423;  Ilsley  v.  Stubbs,  9  Mass.  R.  63. 

2  See  ante,  $  79,  298  ;  and  Bothlingkw.  Inglis,  3  East,  R.  394;  Potter 
v.  Lansing,  1  Johns.  (N.  Y.)  R.  215. 

3  Brown  v.  Hodgson,  2  Campb.  R.  36.     Where  goods  are  purchased  in 
a  foreign  country  in  pursuance  of  orders,  the  delivery  on  board  the  ship  is 
a  delivery  to  the  merchant  who  ordered  them  ;  the  property  is  vested  by 
that  act,  and  the  merchant  has  no  election  to  accept  or  reject  them.     The 
Mary  &  Susan,  1  Wheat.  (U.  S.)  R.  471.     But  if  a  shipment  be  made 
without,  or  contrary  to,  orders,  it  still  remains  at  the  risk  of  the  shipper. 
The  Francis,  2  Gallis.  (Cir.  Co.)  R.  391. 

4  Fregano  v.  Long,  4  B.  &  Cress.  R.  219. 

40* 


474  LAW   OF  CARRIERS.  [cH.  X. 

which  the  right  has  been  held  to  pass  to  the  consignee, 
where  he  has  not  expressly  directed  the  sending  by  some 
particular  conveyance,  or  at  least  the  sending  by  some  con- 
veyance  or  other.1  In  Coates  v.  Chaplain,  in  the  Queen's 
Bench,  in  1842,2  it  appeared,  that  the  travelling  agent  of  M., 
a  tradesman  residing  in  London,  ordered  goods  for  M.  of  the 
plaintiff,  a  manufacturer  at  Paisley.  No  order  was  given  as 
to  sending  the  goods  ;  the  plaintiff  gave  them  to  the  defend- 
ant's carrier,  directed  to  M.,  to  be  taken  to  him,  and  also 
sent  an  invoice  by  post  to  M.,  who  received  it.  The  goods 
having  been  lost  by  the  defendant's  negligence,  it  was  held 
that  the  defendant  was  liable  to  the  consignor. 

§  499.  However,  there  are  particular  circumstances  under 
which  the  possession  of  the  carrier  is  not  the  possession  of 
the  vendee  ;  and  the  rule  laid  down  by  Lord  Kenyon,  in 
Dawes  v.  Peck,3  that  the  question  whether  the  consignor  or 
consignee  is  the  proper  parly  to  sue,  must  be  entirely  gov- 
erned by  the  question  in  whom  the  legal  right  to  the  pro- 
perty is  vested,  is  not  strictly  accurate.4  Undoubtedly,  the 
person  in  whom  the  property  of  the  goods  is  vested  is,  in 
general,  the  proper  party  to  bring  the  action ;  but  then  he  is 
so,  not  because  the  property  is  vested  in  him,  but  because, 
from  that  circumstance,  the  law  presumes  that  he  is  the  party 
who  really  contracts  with  the  carrier,  and  that  any  other 
person  employing  the  carrier,  acts  only,  as  his  agent.5  The 
rule  is  more  properly  stated,  by  Parke,  J.,  in  Freeman  v. 
Birch,6  thai  the  person  employing  the  carrier  must  bring  the 


1  Per  Williams  and  Wightwick,  Js.,  in  Coates  t>.  Chaplain,  3  Ad.  & 
Ell.  R.  (N.  S.)  483. 

2  Vb.  sup. 

3  Dawes  t>.  Peck,  8  T.  R.  332. 

4  See  Waif,  on  Part,  to  Act.  32. 

5  See  opinion  of  Gibson,  J..  in  Griffith  ».  Ingledew,  6  S.  &  Rawle, 
(Penn.)  R.  429. 

6  Freeman  v.  Birch,  1  Nev.  &  Man.  R.  420. 


CH.  X.] 


ACTIONS   AGAINST.  —  PARTIES   TO   SUE. 


475 


action,  but  that  the  circumstance  of  the  legal  right  being  in 
one  person,  may  be  evidence  of  employment  by  that  person. 
Hence  it  follows,  that  in  order  to  decide  who  is  the  proper 
party  to  be  made  plaintiff  in  an  action  of  this  nature,  the 
first  inquiry  must  be,  whether  any  special  agreement  for  the 
carriage  of  the  goods  in  question  exists.  If  there  is  none,  it 
then  becomes  necessary  to  ascertain  in  whom  the  right  of 
property  is  vested.  In  the  former  case,  the  remedy  for  any 
breach  of  contract,  belongs  to  the  party  with  whom  such 
agreement  is  made.  Therefore,  where  the  consignor  agrees 
with  the  carrier  for  the  conveyance  of  the  goods,  and  is  to 
pay  him,  the  action  is  well  brought  in  his  name. 

§  500.  Accordingly,  it  is  found,  that  where  any  thing 
exists  to  contradict  the  legal  presumption  that  the  owner  of 
the  goods  is  the  proper  party  to  call  for  compensation,  the 
owner  ceases  to  be  at  least  the  sole  parly  to  bring  the  action. 
Where  a  special  agreement  is  shown  to  exist  between  the 
consignor  and  the  carrier,  that  the  former  is  to  pay  for  the 
conveyance  of  the  goods,  it  is  no  answer  to  an  action  brought 
by  the  consignor  against  the  carrier,  upon  such  special  agree- 
ment, to  say,  that  he  js  not  the  owner  of  the  goods.  In  such 
case,  the  action  may  be  brought  either  by  the  consignor  with 
whom  the  express  engagement  was  made,  or  by  the  consignee 
as  the  owner  of  the  goods  in  whose  behalf  it  was  made.1 

§  501.  In  Joseph  v.  Knox,2  the  consignor  (the  plaintiff) 
having  received  goods  from  Amsterdam,  to  be  transmitted  to 
the  consignee  in  Surinam,  shipped  them  on  board  the  de- 
fendant's vessel  upon  a  bill  of  lading  which  stated,  that  the 
goods  were  shipped  by  the  plaintiff,  that  they  were  to  be 
delivered  in  Surinam  to  the  consignee  or  his  assigns,  and 


1  Davis  v.  James,  5  Burr.  R.  2680  ;  Moore  v.  Wilson,  1  T.  R.  659 ; 
Robinson  v.  Dunmore,  2  Bos.  &  Pull.  R.  416 ;  and  see  ante,  $  492. 
8  Joseph  v.  Knox,  3  Campb.  R.  320. 


476  LAW   OF   CARRIERS.  [CH.  X. 

that  tfie  freight  was  paid  by  the  plaintiff  in  London  ;  it  was 
held  by  Lord  Ellenborough,  that  the  defendant,  after  having 
signed  such  a  bill  of  lading,  could  not  bring  the  ownership 
of  the  goods  in  question  ;  the  consideration  upon  which  the 
contract  was  founded  moved  from  the  plaintiff;  the  under- 
taking-  was  made  to  him,  and  he  was  therefore  entitled  to 
maintain  the  action,  to  recover  the  value  of  the  goods,  and 
would  hold  the  sum  recovered,  as  a  trustee  for  the  real 
owner.1 

§  502.  If  after  the  carrier  has  fulfilled  his  part  of  the  con- 
tract by  conveying  the  goods  to  the  place  to  which  they  are 
directed,  it  should  appear,  that  there  is  no  such  person  as  the 
one  to  whom  the  goods  are  addressed,  then  a  new  contract 
arises  by  implication  of  law  between  the  carrier  and  the  con- 
signor ;  the  carrier  holds  the  goods  as  the  bailee  of  the  con- 
signor, and  is  bound  to  take  due  care  of  them,  and  to  deliver 
them  to  the  consignor,  on  being  paid  his  fair  and  reasonable 
charges.2 

§  503.  There  is,  says  Lord  Tenterden,  some  difficulty  in 
deciding  to  whom  the  master  and  owners  of  a  vessel  are 
responsible  on  the  contract  evidenced  by  the  bill  of  lading  ; 
and  whether  actions  for  loss  or  injury  occasioned  by  their 
negligence  or  misconduct,  should  be  brought  by  the  con- 
signor or  consignee.3  But  to  contracts  for  the  carriage  of 
goods  by  sea  when  they  are  founded  on  a  bill  of  lading,  the 
general  principles  which  are  above  laid  down  will  be  found 
to  apply ;  the  only  difference  being,  that  in  the  case  of  a  bill 
of  lading  that  must  first  be  resorted  to,  as  the  medium  of 
proving  the  intention  of  the  contracting  parties.4  It  is  true, 
however,  that  upon  this  subject  there  is  some  degree  of  con- 


1  See  also  Hart  v.  Sattley,  3  Campb.  R.  528. 

2  Stephenson  v.  Hart,  1  M.  &  Payne,  R.  375. 

3  Abbott  on  Shipp.  (5th  Am.  edit.)  402,  403. 

4  1  Waif,  on  Part,  to  Act.  37. 


CH.  X.]  ACTIONS  AGAINST.  —  PARTIES   TO   SUE.  477 

fusion  and  contradiction  in  the  cases  ; J  but  there  can  be  no 
doubt,  that  a  consignment  as  evidenced  by  the  bill  of  lading 
is  to  be  controlled  and  explained  by  the  evident  intention  of 
the  parlies.2 

§  504.  It  was  held  in  Sargent  v.  Morris,8  that  where  a 
merchant  ships  goods  on  his  own  account  addressed  to  his 
correspondent  —  there  being  nothing  in  the  course  of  dealing 
between  the  parties  to  show  an  intention  that  the  consignee 
should  take  any  interest  in  the  consignment — the  shipper 
or  consignor,  and  not  the  consignee,  ought  to  bring  the 
action.  On  the  other  hand,  it  has  been  held  in  Pennsyl- 
vania, that  where  A.,  of  Liverpool,  shipped  goods  which,  by 
the  bill  of  lading,  were  to  be  delivered  to  B.,  or  his  assigns, 
in  Philadelphia,  and  the  goods  belonged  to  A.,  and  the  freight 
was  payable  in  Liverpool,  sufficient  property  for  the  support 
of  the  action  was  vested  in  B.,  the  plaintiff.  But  from  the 


1  Per  Tompkins,  J.,  in  Potter  v.  Lansing,  1  Johns.  (N.  Y.)  R.  225. 

2  See  Ludlow  v.  Browne,  1  Johns.  (N.  Y.)  R.  1 ;  Coleman  v.  Lam- 
bert, 5  M.  &  Welsh.  R.  502;  Hibbert  ».  Carter,  1  T.  R.  768;  Low  v. 
D'Wolf,  8  Pick.  (Mass.)  R.  101 ;  Allen  v.  Williams,  22  Ib.  297.     It  has 
been  held  by  the  Court  of  Errors  and  Appeals  in  Alabama,  that  where 
goods  are  shipped,  and  a  bill  of  lading  taken  by  the  shipper,  and  delivered 
to  the  vessel  for  the  consignee,  the  title  to  the  goods  is  not  thereby  neces- 
sarily vested  in  the  consignee  absolutely  ;  that  it  depends  on  the  intention 
of  the  parlies ;  that  if  made  for  the  purpose  of  passing  title,  the  delivery 
of  the  bill  of  lading  will  have  that  effect ;  but  if,  on  the  other  hand,  there 
be  no  contract  of  purchase  between   the   consignor  and   consignee,  the 
owner's  title  will  not  be  divested.     Bonner  v.  Marsh,  10  Sme.  &  Marsh. 
(Miss.)  R.  376.     And  see  Abbott  on  Shipp.  (5th  Am.  edit.)  402-416; 
Craven  v.  Ryder,  6  Taunt.  R.  433.     It  was  shown  by  Tompkins,  J.  in. 
Ludlow  v.  Browne,  ub.  sup.,  that  the  consignment  was  open  to  explana- 
tion, whether  made  to  the  consignee,  or  for  account  and  risk  of  consignor. 
The  case  of  Hibbert  v.  Carter,  1  T.  R.  746,  decides,  that  the  correct  rule 
is,  that  the  transfer  of  a  bill  of  lading  to  a  creditor  prima  facie  conveys  the 
whole  property  in  the  goods  from  the  time  of  its  delivery ;  but  it  also 
decides,  that  if  the  parties  only  intended  to  bind  the  proceeds,  the  right  of 
properly  in  the  thing  is  not  divested. 

Sargent ».  Morris,  3  B.  &  Aid.  R.  277. 


478  LAW   OF   CARRIERS.  [CH.  X. 

opinion  of  the  rest  of  the  Court  Mr.  J.  Gibson  dissented  : 
and  the  doctrine  he  deduced  from  an  elaborate  review  of  the 
authorities,  was,  that  the  discriminative  circumstances  were, 
1st,  an  engagement  to  pay  the  freight  by  the  person  who 
brings  the  action  ;  2d,  an  order  by  the  consignee  to  deliver 
the  goods  to  any  or  a  particular  carrier,  for  account  and 
risk  of  the  consignee.  And,  as  a  consequence  of  this,  3d, 
not  merely  the  legal  property,  but  a  beneficial  interest  in 
the  goods  existing  in  the  person  who  brings  the  action  ;  in 
all  which,  the  learned  Judge  considered,  the  case  made  out 
by  the  plaintiff  was  deficient.  Neither  of  the  above  circum- 
stances, he  asserted,  had  ever  been  considered  the  substan- 
tive ground  of  the  action,  but  only  evidence  whether  the 
contract  was  made  by  the  carrier  with  the  consignor  or  with 
the  consignee.  Admitting,  said  he,  that  the  consignee  might 
have  maintained  trover  on  any  action  founded  on  property, 
yet  the  action  here  was  not  founded  on  property,  but  on 
contract;  and  that,  therefore  an  interest  in  the  property, 
which  did  not  draw  after  it  an  interest  in  the  contract,  was 
insufficient.1 

§  505.  In  Potter  v.  Lansing,  in  New  York,2  it  was  held, 
that  if  goods  be  shipped  "  for  the  account  and  risk  of  the 
consignee,  he  paying  the  freight,"  and  it  is  so  expressed  in 
the  invoice  and  bill  of  lading,  the  delivery  to  the  carrier  is 
a  delivery  to  the  consignee,  who  alone  can  bring  the  action 
against  the  carrier,  in  case  they  are  not  delivered.  It  did  not 
expressly  appear,  that  the  goods  had  been  delivered  by  the 
order  of  the  consignee,  but  that  fact  (on  which  it  has  been 
contended,  the  correctness  of  the  decision  most  certainly 


1  Griffith  v.  Ingledew,  6  S.  &  Rawle,  (Penn.)  R.  429.     See  in  support 
of  the  opinion  of  Judge  Gibson,  Coates  v.  Chaplain,  3  Ad.  &  Ell.  R. 
(N.  S.)  483,  and  cited  ante,  §  498  ;  Joseph  ».  Knox,  3  Carnpb.  R.  320, 
and  .cited  .ante,  §  501 ;  Freeman  v.  Birch,  1  Nev.   &  Man.  R.  420,  and 
cited  ante,  §  499. 

2  Potter  v.  Lansing,  1  Johns.  (N.  Y.)  R.  215. 


CH.  X.]  ACTIONS  AGAINST.  —  PARTIES  TO   SUE.  479 

depends) 1  seems  to  have  been  assumed  by  the  Court ;  for 
Tompkins,  J.,  in  delivering  the  opinion  of  the  majority,  goes 
on  the  ground,  that  delivery  to  the  carrier  had  divested  the 
property  of  the  consignor,  and  cast  the  risk  on  the  con- 
signee ;  an  effect  that  could  be  produced  only  by  a  delivery 
to  order.2 

§  506.  The  right  of  action  upon  simple  contracts  is  not 
confined,  as  in  deeds,  to  the  person  with  whom  the  contract 
is  in  terms  made,  but  the  person  for  whose  use  such  a  con- 
tract has  been  entered  into  may  maintain  an  action  thereon, 
although  the  contract  is  not  in  express  terms  made  with  him, 
but  with  another  in  his  behalf;  and  therefore,  if  the  bill  of 
lading  be  special,  to  deliver  to  A.  for  the  use  of  B.,  B.  ought 
to  bring  the  action.3 

§  507.  Where  a  bill  of  lading  is  signed  in  blank,  and  is 
subsequently  filled  up  by  the  person  to  whom  it  is  sent,  by 
the  consignor's  authority,  it  has  the  same  effect  in  vesting  the 
property  as  if  the  particular  name  inserted  had  been  by  the 
consignor's  direction  ;  so  that  the  consignee  may,  or  may  not, 
confer  a  right  of  property  on  a  third  person.  A.,  of  Brazil, 
being  indebted  to  P.  H.  &  Co.  of  New  York,  was  requested 
by  them  to  make  a  remittance  in  discharge  of  his  debt ;  and 
he  thereupon  shipped  goods  on  board  a  vessel  bound  to  Salem 
on  his  own  account  and  risk,  and  sent  therewith  bills  of  lad- 
ing, by  which  the  goods  were  made  deliverable  to  his  own 
order,  and  which  were  indorsed  by  him  in  blank,  and  inclosed 
to  H.  &  Co.  of  New  York,  (successors  of  P.  H.  &  Co.)  with 


1  By  Gibson,  J.  in  Griffith  v.  Ingledew,  ub.  sup. 

8  Ibid.  That  the  goods  must  have  been  ordered  by  the  consignee  to 
entitle  him  to  sue,  see  Coates  v.  Chaplain,  3  Ad.  &  Ell.  R.  (N.  S.)  483, 
and  cited  ante,  §  498. 

3  Evans  v.  Martlett,  1  Ld.  Raym.  R.  271  ;  Sargent  v.  Morris,  3  B.  & 
Aid.  R.  277;  Powell  v.  Bradlee,  9  G.  &  Johns.  (Md.)  220  ;  Everett  ». 
Saltus,  15  Wend.  (N.  Y.)  R.  474. 


480  LAW    OF   CARRIERS.  [CH.  X. 

authority  to  fill  up  the  blank  and  make  the  goods  deliverable 
to  themselves,  or  to  such  person  as  they  might  name,  with 
power  to  receive  the  proceeds  in  satisfaction  of  A.'s  debt  to 
P.  H.  &  Co.  On  the  arrival  of  the  vessel  at  Salem,  the  bills 
of  lading  were  forwarded  to  H.  &  Co.,  who  filled  up  the  in- 
dorsement thereon  by  making  the  goods  deliverable  to  C.  H. 
&  Co.  of  Boston,  who  were  to  receive  and  dispose  of  the 
goods,  and  account  for  the  proceeds  thereof  in  payment  of 
A.'s  said  debt.  C.  H.  &  Co.  thereupon  went  to  Salem, 
received  the  goods  and  entered  them  at  the  custom-house, 
gave  bond  for  the  duties,  and  became  responsible  for  the 
freight.  While  the  goods  were  in  their  possession,  the  same 
were  attached  as  the  property  of  P.  H.  &  Co.  ;  whereupon 
C.  H.  &  Co.  brought  an  action  of  replevin  against  the  attach- 
ing officer.  It  was  held,  that  the  property  in  the  goods  had 
not  vested  in  P.  H.  &  Co.,  and  that  C.  H.  &  Co.  were  enti- 
tled to  maintain  their  action.1 

§  508.  In  Conrad  v.  Atlantic  Insurance  Company,2  the  bill 
of  lading  purported,  on  its  face,  to  be  a  shipment  by  E,  T.  of 
a  number  of  kegs  of  specie,  for  account  and  risk  of  the 
shipper  ;  to  be  delivered  at  Canton  to  J.  T.,  or  his  assigns. 
The  Court  held,  that  by  the  well  settled  principles  of  com- 
mercial law,  the  consignee,  under  these  circumstances,  was 
constituted  the  agent  of  the  owner  whoever  he  might  be,  to 
receive  the  goods,  and  by  his  indorsements  of  the  bill  of 
lading,  to  a  bond  fide  purchaser  for  a  valuable  consideration, 
without  notice  of  any  adverse  interests,  the  latter  becomes  as 
against  all  the  world,  the  owner  of  the  goods.  This  is  the 
result  of  the  principle,  that  bills  of  lading  are  transferable  by 
indorsement,  and  thus  may  pass  the  property.  But  if  the 
shipper  be  the  owner,  and  the  shipment  be  made  on  his  own 
account  and  risk,  although  he  may  not  pass  the  title  by  virtue 


1  Chandler  v.  Sprague,  5  Met.  (Mass.)  R.  306. 

2  Conrad  v.  Atlantic  Insurance  Company,  1  Peters,  (U.  S.)  R.  386, 
445. 


CH.  X.]  ACTIONS   AGAINST.  —  PARTIES  TO   SUE.  481 

of  a  mere  indorsement  of  a  bill  of  lading,  unless  he  be  the 
consignee,  or  what  is  the  same  thing,  it  be  deliverable  to  his 
order  ;  yet  by  any  assignment,  either  on  the  bill  of  lading, 
or  by  a  separate  instrument,  he  can  pass  the  legal  title  to  the 
same  ;  and  it  will  be  good  against  all  persons,  except  such  a 
purchaser  for  a  valuable  consideration,  by  an  indorsement  of 
the  bill  of  lading  itself.  In  the  case  above  mentioned,  E.  T. 
was  the  owner  of  the  goods,  and  the  consignee  was  merely 
his  factor  ;  he,  therefore,  had  full  power,  notwithstanding  the 
consignment,  to  pass  the  title  to  the  property  in  the  bill  of 
lading,  by  a  suitable  instrument  of  assignment  against  any 
body,  but  a  purchaser  without  notice  from  his  consignee, 
without  any  actual  delivery  of  the  goods  themselves,  if  they 
were  then  at  sea,  and  incapable  of  manual  tradition.1 

§  509.  In  an  action  against  a  common  carrier,  where  it 
appeared  that  the  plaintiffs  directed  J.  L.  to  barter  certain 
chairs  for  a  bale  of  handkerchiefs,  and  ship  them  on  board 
the  defendant's  packet,  to  be  transported  to  the  plaintiffs  ; 
J.  L.  had  the  bale  delivered  on  board  the  packet  in  order 
that  it  might  be  carried  and  delivered  to  the  plaintiffs,  and 
they  retained  certain  moneys  of  J.  L.  in  their  hands  arising 
from  the  sale  of  butter  consigned  to  them,  to  the  amount  of 
the  price  of  the  bale  of  handkerchiefs,  as  and  for  satisfaction. 
Evidence  being  given,  that  the  recovery  in  the  cause  was 
for  the  use  of  J.  L.,  it  was  held,  that  the  action  could  be 
sustained.2 

§  510.  Where  a  consignee  at  Liverpool  on  receipt  of  a  bill 
of  lading,  by  which  goods  actually  laden  at  Longford  were 
made  deliverable  to  certain  persons  in  Dublin  "  in  care  for, 
and  to  be  shipped,  to,"  him,  accepted  on  the  faith  of  the 
consignment,  a  bill  of  exchange,  it  was  held,  that  the  bill  of 

1  See  also  Nathan  v.  Giles,  5  Taunt.  R.  558 ;  Allen  v.  Williams,  12 
Pick.  (Mass.)  R.  297 ;  Low  v.  D'Wolf,  8  Ib.  101. 

2  D'Anjou  v.  Deagle,  3  H.  &  Johns.  (Md.)  R.  206. 

41 


482  LAW   OF   CARRIERS.  [CH.  X. 

lading  was  evidence  of  an  intention  on  the  part  of  the  con- 
signor at  the  time  of  the  lading  to  vest  in  the  consignee,  the 
property  in  the  specific  chattels  laden,  and  that  he  might 
maintain  an  action  of  trover  for  them,  against  a  person  to 
whom  they  had  been  delivered,  under  a  subsequent  order  of 
the  consignor.1  The  case  in  respect  of  the  goods  thus  actu- 
ally laden  at  the  time  the  bill  of  lading  was  signed,  was  dis- 
tinguished from  those,  in  which,  there  being  no  documentary 
or  other  evidence  to  prove  an  intention  on  the  part  of  the 
consignors  to  vest  the  property  in  the  consignee  at  the  time 
of  the  delivery  to  the  carrier.2  And  in  the  same  case,  it  was 
held,  that  goods  which  were  proved  not  to  have  been  actually 
laden,  or  specifically  appropriated  to  the  consignee  when  the 
bill  of  lading  was  given,  had  not  vested  in  him. 

§  511.  Goods  may  be  shipped  to  the  order  and  "  on  ac- 
count and  risk  "  of  the  assignee  as  a  purchaser,  and  yet  his 
right  to  the  possession  of  them  be  incomplete.3  Between  the 
consignor  and  consignee,  the  agreement  or  intention  may  be, 
that  the  property  in  the  goods  shall  not  vest  in  the  latter, 
until  bills  of  exchange  drawn  for  their  amount  on  the  con- 
signee, or  on  other  parties,  be  accepted.  When  this  is  the 
case,  the  master  will  generally  be  required  to  sign  bills  of 
lading  to  deliver  the  goods  to  the  orders  of  the  shipper,  by 
whom,  one  part,  unindorsed,  will  be  forwarded  to  the  con- 
signee, to  notify  the  shipment,  another  part  indorsed,  to  the 
agent  of  the  consignor,  to  be  delivered  to  the  consignee, 
when  the  condition  of  the  consignment  has  been  performed, 
by  the  acceptance  of  the  bills  of  exchange.4  Where  the 
direction  is  not  to  deliver  the  goods  in  case  of  the  existence 


1  Bryans  v.  Nix,  4  M.  &  Welsh.  R.  775. 

2  Kinloch  v.  Craig,  14  East,  R.  582 ;  Nichols  v.  Clint,  3  Price,  R. 
547  ;  Bruce  v.  Wait,  3  M.  &  Welsh.  R.  15. 

3  Abbott  on  Shipp.  (5th  Am.  edit.)  404 ;  Wilsmhurst  v.  Bowker,  5 
Bing.  New  R.  5. 

4  Abbott,  ub.  sup. ;  Brandt  v.  Bowlby,  2  B,  &  Adol.  R.  932. 


CH.  X.]       ACTIONS   AGAINST.  —  PARTIES   TO   BE  SUED.  483 

of  certain  circumstances,  nor  until  payment  should  be  made 
by  the  consignee  in  cash ;  the  property  in  the  goods  continues 
in  the  consignor.1  Even  after  a  shipment  has  been  made, 
and  a  bill  of  lading  making  the  goods  deliverable  to  a  con- 
signee, by  name,  has  been  signed,  the  consignor  and  owner 
of  them  may  attach  conditions  to  the  consignment,  or  revoke 
it,  at  any  time  before  the  bill  of  lading,  or  the  goods  are 
actually  delivered  to  the  consignee.2  It  thus  appears,  that 
the  mere  shipment  of  goods  does  not  always  vest  the  pro- 
perty of  them  in  the  consignee,  though  he  be  a  purchaser.3 

§  512.  Upon  a  shipment  of  goods  to  be  sold  on  joint  ac- 
count of  the  consignee  and  consignor,  or  of  the  latter  alone, 
at  the  option  of  the  consignee,  the  right  of  property  does  not 
vest  in  the  consignee,  until  he  has  made  his  election  under 
the  option  given  him.4 

13.  Parties  to  be  sued. 

§  513.  The  action  for  the  loss  of  goods  delivered  to  a 
carrier  in  consequence  of  the  negligence  of  the  -carrier's  ser- 
vant, such  as  a  driver  or  porter,  must  be  brought  against 
the  carrier,  and  will  not  lie  against  the  servant.  Or  as  is 
stated  by  a  learned  writer,  "  An  action  for  negligence  of 
this  nature  must  be  brought  against  the  principal,  and  not 
against  an  agent  employed  in  the  conduct  of  the  master's 
business,  although  the  loss  has  resulted  from  the  negligence 
of  the  latter."  5  But  if  it  appears  that  the  contract  was  made 


1  The  Merrimack,  8  Cranch,  (U.  S.)  R.  317;  and  see  Ludlow  v. 
Browne,  1  Johns.  (N.  Y.)  R.  1. 

a  Mitchel  v.  Ede,  3  Pert.  &  Dav.  R.  513,  and  11  Adol.  &  Ell.  R.  88. 
In  this  case,  although  the  consignor  was  indebted  to  the  consignee,  there 
was  no  agreement  between  them  that  the  goods  should  be  consigned,  or 
advices  that  they  had  been  consigned,  in  reduction  of  the  balance  due. 

3  Abbott  on  Shipp.  (5th  Am.  edit.)  407. 

4  The  Venus,  8  Cranch,  (U.  S.)  R.  253. 

5  Stark.  Ev.  284,  3d  Lond.  edit. ;  and  see  also  2  Greenl.  Ev.  §  212; 


484  LAW   OF   CARRIERS.  [CH.  X. 

with  the  servant  alone,  and  independently  of  the  principal, 
and  the  servant  expressly  undertook  on  his  own  account  to 
carry  the  lost  parcel,  he  will  then  become  liable  to  an  action, 
as  the  driver  of  a  wagon  or  stage-coach,  carrying  parcels  on 
his  own  account.1 

§  514.  In  Williams  v.  Cranston,2  where  a  watch  was  de- 
livered to  the  driver  of  a  stage-coach  to  be  carried,  it  was 
held  by  Lord  Ellenborongh  to  charge  the  principal  and  not 
the  servant ;  and  the  action  being  against  the  servant  only, 
the  plaintiff  was  nonsuited.  The  learned  Judge  said  :  "  I 
accede  to  the  proposition,  that  if  the  defendant  could  be 
considered  as  having  taken  the  watch  to  be  carried  on  his 
own  account,  for  a  reward  to  be  paid  by  him,  he  would  be 
liable,  although  he  acted  in  fraud  of  his  master.  If  it  could 
be  shown  that  he  had  been  in  the  habit  of  conveying  parcels 
for  hire,  the  case  would  certainly  be  altered ;  but  being  the 
mere  servant,  it  cannot  be  inferred  that  he  took  the  parcel  to 
be  carried  for  hire  and  reward,  without  farther  proof.  The 
only  fact  is,  that  he  was  the  driver  of  the  coach  ;  no  con- 
tract has  been  proved,  there  is  nothing  to  indicate  that  the 
defendant  received  the  parcel  otherwise  than  in  the  charac- 
ter of  a  servant.  I  should  have  been  glad  if  the  case  could 
have  been  carried  farther.  At  present  the  loss  appears  to 
have  resulted  from  the  negligence  of  the  master,  through  the 
medium  of  his  servant."  It  would  have  been  otherwise  if 
the  servant  had  undertaken  to  carry  for  hire  on  his  own 
account,  although  in  fraud  of  his  master.3 

White  v.  Boulton,  Peake,  R.  81.  That  it  is  a  part  of  the  responsibility 
of  the  carrier  to  be  answerable  for  the  acts  of  his  servants,  see  ante,  §  91, 
146.  Where  a  parcel  carried  from  Bath  to  Bristol,  was  delivered  by  the 
mail- guard  to  a  porter,  who  received  a  proportion  of  the  porterage,  the 
rest  being  paid  to  the  proprietors  of  the  inn  where  the  coach  stopped,  for 
booking,  it  was  held,  that  the  porter,  being  a  mere  servant,  was  not  liable 
to  be  sued  for  the  loss.  Cavenagh  v.  Such,  1  Price,  R.  328. 

1  See  ante,  $  76,  77. 

2  Williams  v.  Cranston,  2  Stark.  R.  82. 

3  Beauchamp  v.  Powley,  1  Mo.  &  Rob.  R.  38. 


CH.  X.]      ACTIONS  AGAINST.  —  PARTIES   TO   BE   SUED.  485 

§  515.  Where  an  agent  does  not  pursue  in  any  degree  the 
principal's  authority  ;  or  so  far  exceeds  it  as  to  discharge  the 
principal  from  responsibility  for  his  acts ;  or  where  he  acts 
under  an  authority  which  he  knows  the  principal  has  no 
right  to  give,  as  an  agent  selling  property  under  a  notice 
that  it  does  not  belong  to  his  principal ;  he  (the  agent)  is 
personally  liable  to  be  sued.1  As  a  general  rule,  an  act 
done  for  another  by  a  person  not  assuming  to  act  for  him- 
self, but  for  another  person,  though  without  any  precedent 
authority,  becomes  the  act  of  the  principal,  if  subsequently 
ratified  by  him.  Where,  however,  a  person  does  not  at  the 
time  assume  to  act  as  agent,  a  party  will  not  become  liable 
by  a  subsequent  ratification  of  the  act.2 

§  516.  Where  two  persons  are  jointly  interested  in  the 
mode  of  conveyance,  (a  wagon  or  stage-coach  for  instance,) 
each  is  liable  for  the  negligence  of  an  agent  in  conducting 
it ;  although  by  a  subordinate  arrangement  between  them- 
selves each  undertakes  the  management  of  the  vehicle  by 
his  own  driver  and  his  own  horses,  for  specified  distances.3 

§  517.  In  respect  to  the  joinder  of  parties  as  defendants, 
it  is  now  settled  with  regard  to  carriers,  that  where  the 
action  is  laid  in  tort,  and  is  founded  on  a  breach  of  Common 
Law  duty,  it  is  several  in  its  nature,  and  is  maintainable 


1  1  Chitt.  PI.  10th  Am.  edit.  35  a.     Semble,  that  the  owner  of  fixed 
property,  who  enters  into  a  contract  for  its  repairs,  and  parts  with  all 
control  over  the  conduct  of  them,  is  not  liable  for  any  mischief  which  the 
contractor  may  occasion  in  the  progress  of  the  work  by  negligently  depos- 
iting materials  in  the  highway  in  the  neighborhood  of  the  property,  or  other 
acts  of  a  like  nature.     Burgess  v.  Gray,  14  Law  Journ.  N.  S.  C.  P.  184, 
thus  cited  in  5  Harr.  Dig.  312. 

2  Broom  on  Part,  to  Act.  260 ;  Wilson  «.  Furman,  6  Scott,  New  R. 
894.     And  see  New  Jersey  Steam  Navigation  Company  t;.  Merchants 
Bank,  6  How.  (U.  S.)  R.  344,  and  Appx.  p.  liv.,  and  ante,  §  49 i  ;  Chase 
t>.  Debolt,  2  Gill.  (111.)  R.  371. 

3  Waland  v.  Elkins,  1  Stark.  R.  272,  and  ante,  §  93. 

41* 


486  LAW   OP   CARRIERS.  [cH.  X. 

against  some  only  of  those  against  whom  the  action  is 
brought.  But  where  the  declaration  is  in  assumpsit  and  is 
founded  in  contract,  the  plaintiff  must  prove  a  joint  promise, 
as  by  proof  that  all  the  defendants  were  proprietors.1 

§  518.  An  exception  to  the  general  rule  as  to  the  non-lia- 
bility of  the  agents  of  carriers  to  be  sued  for  non-feasance,  is 
established  by  the  principles  of  maritime  law,  by  which 
the  master  of  a  ship  is  regarded  not  as  the  mere  servant 
of  the  owners,  but  rather  as  an  independent  officer  ;  and 
consequently  he,  as  well  as  the  owners,  is  personally  re- 
sponsible for  the  loss  or  damage  of  the  property  intrusted 
to  his  care.  The  goods  are  in  his  custody  as  soon 
as  they  are  put  on  board  the  vessel,2  and  he  is  bound  to 
deliver  them  in  the  same  state  in  which  they  were  shipped, 
unless  they  have  become  damaged  by  some  inherent  defect.3 
In  short,  it  may  be  laid  down  as  the  general  rule,  that  the 
master  is  liable  to  an  action  when  any  loss  occurs,  if  not 
occasioned  by  the  act  of  God,  perils  of  the  sea,  or  the  public 
enemy.  Unless  there  is  some  special  contract  with  the 
owners,  the  plaintiff  has  his  election  to  sue  either  the  master 
or  the  owners ; 4  if  there  is  a  special  contract  with  the 


1  The  subject  of  mis-joinder  and  non-joinder  of  parties  as  defendants, 
has  already  been  fully  considered  under  another  head.     See  ante,  §  423, 
et  seq. ,  434,  et  seq. 

2  See  ante,  §  129,  130. 

3  See  ante,  §210,  211. 

4  Bac.  Abr.  Actions,  B. ;  Abbott  on  Shipp.  5th  Am.  edit.  300;  Marsh, 
on  Ins.  241  ;  1  Waif,  on  Part,  to  Act.  930.     It  would  be  of  inconceivable 
mischief  and  impediment  in  commercial  dealing,  if  a  foreign  merchant 
making  a  contract  of  freight  with  the  master,  should  be  compelled  for  any 
consequential  injury  to  seek  out  the  owners.     The  law,  therefore,  in  order 
to  avoid  this  inconvenience,  gives  all  who  deal  or  contract  with  the  master 
the  two-fold  remedy,  that  they  may  proceed  against  either  or  both.    1  Holt, 
Law  of  Shipp.  379;  Boson  v.  Sandford,  Garth.  R.  63;  Morse  v.  Slue, 
1  Ventr.  190.     Molloysays,  "the master  must  see  all  things  forthcoming 
that  are  delivered  to  him,  let  what  will  happen  ;  the  act  of  God,  or  an 
enemy,  perils  and  dangers  of  the  sea  only  excepted."    Molloy,  b.  2,  c. 


CH.  X.]    ACTIONS  AGAINST. — PARTIES  TO  BE  SUED.     487 

master,  the  owner  is  not  liable ;  and  on  the  other  hand,  if 
there  is  a  special  contract  with  the  owner,  the  master  is 
not  liable.1 

§  519.  When  goods  are  sent  on  board  a  vessel,  the  master, 
or  person  on  board  acting  for  him,  usually  gives  a  bill  of 
lading",  upon  which  the  action  may  be  either  against  the 
master  or  owner,  though  in  the  shipment  of  them  such  a 
document  is  not  necessary.2  By  this  instrument  of  contract, 
though  made  personally  with  the  master,  and  not  with  the 
owners,  both  he  and  they  are  separately  bound  to  the  per- 
formance of  it ;  3  and  if  the  action  be  against  the  owner,  the 


2,  s.  2.  Upon  the  principle  of  public  policy,  the  master  of  a  vessel,  by 
the  almost  universal  law  of  nations,  as  well  as  by  the  Common  Law,  is 
chargeable  for  all  losses  not  arising  from  inevitable  accident.  The  marine 
law  lays  down  the  rule  with  essentially  the  same  strictness  ;  and  the  civil 
law,  the  source  in  this  instance  of  the  marine  law,  was  equally  guarded, 
and  placed  masters  of  vessels  and  innkeepers  under  the  like  responsibility. 
The  reason  given  in  the  civil  law  for  the  rule,  is,  that  it  is  necessary  to 
confide  largely  in  the  honesty  of  masters  of  vessels,  on  account  of  the 
great  opportunities  they  have  to  commit  frauds,  which  it  would  be  impos- 
sible to  trace  ;  and  the  Courts  in  the  United  States  have  always  considered 
masters  of  vessels  liable  as  common  carriers,  in  respect  to  foreign,  as  well 
as  internal,  voyages.  See  opinion  of  Kent,  C.  J.,  in  Elliott  v.  Rossell, 
10  Johns.  (N.  Y.)  R.  1.  The  policy  of  the  law  in  making  the  master 
of  a  vessel  liable  for  the  non-delivery  of  goods  lost  during  the  voyage, 
•without  the  fraud  of  the  master,  is  to  induce  him  to  employ  better  men  in 
his  service.  Per  Spencer,  J.,  in  Watkinson  v.  Laughton,  8  Johns.  (N.  Y.) 
R.  213.  M'Clure  v.  Hammond,  1  Bay,  (S.  C.)  R.  99;  Bell  ».  Reed, 
4  Binn.  (Penn.)  R.  127  ;  Schiefflin  v.  Harvey,  6  Johns.  (N.  Y.)  R.  170, 
have  proceeded  upon  the  principle,  that  the  master  of  a  ship  is  liable  as  a 
common  carrier,  for  an  embezzlement  happening  in  the  course  of  a  foreign 
voyage.  And  see  Thorn  v.  Hicks,  7  Cow.  (N.  Y.)  R.  697. 

1  Ibid.,  and  1  Chitt.  PI.  35  a,  10th  Am.  edit. 

2  2  Saund.  119. 

3  Abbott  on  Shipp.  5th  Am.  edit.  396 ;   Stone  v.  Ketland,  1  Wash. 
(Cir.  Co.)  R.  142  ;  Bussey  ».  Donaldson,  4  Dallas,  R.  296  ;  Purviance  v. 
Angus,  1  Ib.  184;  and  note  (1)  to  p.  166  of  Abbott  on  Shipp.  5th  Am. 
edit.     Although  the  master  and  owner  of  a  vessel  are  both  liable  to  the 
merchant  as  carriers,  for  the  loss  of  goods,  yet  they  are  liable  only  sever- 


488  LAW   OF   CARRIERS.  [CH.  X. 

form  of  declaration  against  the  master  will  suffice  with  very 
little  alteration.1     In  cases  of  this  nature,  occurring  within 


ally,  and  a  joint  action  cannot  be  maintained  against  them.  The  master  is 
liable  in  a  different  character  and  on  a  different  ground.  Where  he  has 
no  property  in  the  vessel,  and  has  only  the  conduct  and  management  of  the 
vessel,  he  is  the  confidential  servant  or  agent  of  the  owners.  They  are 
bound  by  his  contracts,  by  reason  of  their  employment  of  the  ship  and 
the  profit  which  they  derive  from  it,  by  the  receipt  of  the  freight  money. 
The  master  is  liable  on  his  own  contract  also  for  the  transportation  of  the 
goods,  and  by  virtue  of  his  taking  charge  of  them  for  that  purpose.  The 
liability  of  the  master  seems  rather  to  be  by  express  undertaking,  even 
where  the  owners  are  known.  By  the  Court  in  Patton  v.  Magrath,  1  Rice, 
(S.  C.)  R.  162. 

1  The  following  is  the  form  of  a  declaration  against  the  captain  of  a  ship 
on  his  bill  of  lading  for  the  loss  of  goods,  contained  in  2  Chitt.  PI.  365,  a, 
10th  Am.  edit.  "  For  that  whereas  the  said  defendant,  before  and  at  the 
time  of  the  making  of  his  promise  and  undertaking  hereinafter  next  men- 
tioned, was  the  master  and  commander  of  a  certain  ship  or  vessel  called 
the ,  then  in  [the  river  Thames,]  and  bound  from  thence  to  [Liver- 
pool, in  the  county  of  Lancaster,]  to  wit,  at,  &c.  (venue).  And  thereupon 
the  said  plaintiff  heretofore,  to  wit,  on,  &c.  (the  date  of  the  bill  of  lading 
or  about  it,)  in  the  river  Thames  aforesaid,  to  wit,  at,  &c.  (venue)  afore- 
said, at  the  special  instance  and  request  of  the  said  defendant  (let  the  fol- 
lowing averment  agree  with  the  bill  of  lading)  caused  to  be  shipped  and 
loaded  in  and  on  board  of  the  said  ship  or  vessel,  whereof  the  said  defend- 
ant then  was  such  master  or  commander  as  aforesaid,  divers  goods  and 

merchandise,  to  wit, ,  then  in  good  order  and  well-conditioned,  (these 

latter  words  are  to  be  omitted,  if  not  in  the  bill  of  lading)  of  great  value,  to 
wit,  of  the  value  of  £ — ,  to  be  taken  care  of  and  safely  and  securely  car- 
ried and  conveyed  by  the  said  defendant  as  such  master  and  commander  as 
aforesaid,  in  and  on  board  of  the  said  ship  or  vessel,  from  [the  river 
Thames]  aforesaid,  to  [Liverpool]  aforesaid,  and  there,  to  wit,  at  [Liver- 
pool] aforesaid,  to  be  safely  and  securely  delivered  in  the  like  good  order 
and  well-conditioned  for  the  said  plaintiff,  (the  dangers  of  the  seas  only 
excepted) :  and  in  consideration  thereof,  and  of  certain  freight  and  reward 
to  the  said  defendant  in  that  behalf,  he  the  said  defendant  then  and  there 
undertook,  and  faithfully  promised  the  said  plaintiff,  to  take  care  of,  and 
safely  and  securely  carry  and  convey,  and  deliver  the  said  goods  and  mer- 
chandise as  aforesaid,  (the  dangers  of  the  seas  only  excepted) ;  and  al- 
though the  said  defendant  so  being  such  master  of  the  said  ship  or  vessel 
as  aforesaid,  then  and  there  had  and  received  the  said  goods  and  merchan- 
dise, to  be  carried,  conveyed,  and  delivered  as  aforesaid,  and  although  a 


CH.  X.]       ACTIONS  AGAINST.  —  PARTIES  TO   BE   SUED.  489 

the  limits  of  tide  water,  there  is,  as  we  have  seen,  a  remedy 
in  the  Admiralty,  which  lies  against  the  owner  and  against 
the  ship  itself,  for  the  injury  done,  holding  her  responsible  on 
account  of  the  responsibility  of  the  owner.1 


reasonable  time  for  the  carrying,  conveying,  and  delivering  of  the  said 
goods  and  merchandise  as  aforesaid,  hath  long  since  elapsed,  and  the  said 
defendant  hath  delivered  a  part  (let  (his  agree  with  the  fact)  of  the  said 

goods  and  merchandise,  to  wit, part  thereof,  for  the  said  plaintiff,  at 

[Liverpool]  aforesaid ;  yet  the  said  defendant,  so  being  such  master  and 
commander  of  the  said  ship  or  vessel  as  aforesaid,  not  regarding  his  duty 
in  that  respect,  nor  his  said  promise  and  undertaking,  but  contriving  and 
intending  to  deceive,  injure,  and  defraud  the  said  plaintiff  in  his  behalf,  did 
not,  nor  would  take  care  of,  and  safely  and  securely  carry  or  convey  the 
residue  of  the  said  goods  and  merchandises  so  shipped  in  and  on  board  of 
the  said  ship  or  vessel  as  aforesaid,  from  [the  river  Thames]  aforesaid  to 
[Liverpool]  aforesaid,  and  there,  to  wit,  at  [Liverpool]  aforesaid,  safely  or 
securely  deliver  the  same  for  the  said  plaintiff,  (although  no  danger  of  the 
seas  did  prevent  him  from  so  doing,)  but  on  the  contrary  thereof,  he  the 
said  defendant,  so  being  such  master  of  the  said  ship  or  vessel  as  aforesaid, 
so  carelessly  and  negligently  behaved  and  conducted  himself,  with  respect 
to  the  said  residue  of  the  said  goods  and  merchandise,  that  by  and  through 
the  mere  carelessness,  negligence  and  improper  conduct  of  the  said  de- 
fendant, and  his  mariners  and  servants  in  that  behalf,  the  said  residue  of 
the  said  goods  and  merchandise,  being  of  great  value,  to  wit,  of  the  value 
of  £  — ,  became  and  was  wholly  lost  to  the  said  plaintiff,  to  wit,  at,  &c. 
(venue)  aforesaid.  And  whereas  also,  heretofore,  to  wit,  on  the  day  and 
year  aforesaid,  at,  &c.  (venue)  aforesaid,  in  consideration  that  the  said 
plaintiff,  at  the  special  instance  and  request  of  the  said  defendant,  had 
then  and  there  caused  to  be  delivered  to  the  said  defendant,  divers  other 
goods  and  merchandise,  to  wit,  goods  and  merchandises  of  the  like  num- 
ber, quantity,  quality,  description  and  value,  as  those  in  the  said  first  count 
mentioned,  to  be  taken  care  of,  and  safely  and  securely  carried  and  con- 
veyed by  the  said  defendant,  in  and  on  board  of  a  certain  other  ship  or 
vessel,  from  [the  river  Thames]  aforesaid  to  [Liverpool]  aforesaid,  and 
there,  to  wit,  at  [Liverpool]  aforesaid,  to  be  safely  and  securely  delivered 
for  the  said  plaintiff,  for  certain  freight  and  reward,  to  the  said  defendant 
in  that  behalf,  he  the  said  defendant  undertook,  and  then  and  there  faith- 
fully promised  the  said  plaintiff,  to  take  due  and  proper  care  of  the  said 
last-mentioned  goods  and  merchandise,  whilst  he  had  the  care  and  custody 
thereof,  for  the  purpose  aforesaid.  And  although  the  said  defendant  then 

1  See  ante,  §  419-422. 


490  LAW  OF  CARRIERS.  [CH.  X. 

§  520.  This  great  responsibility,  which  the  laws  of  com- 
mercial nations  cast  upon  the  owners  for  the  acts  of  the 
master,  has  appeared,  says  Lord  Tenterden,  to  many  persons, 
at  first  view,  to  be  a  great  hardship  ;  but,  says  that  learned 
writer,  "  laying  aside  all  considerations  of  the  opportunities 
of  fraud  and  collusion,  which  would  otherwise  be  afforded, 
it  should  always  be  remembered,  that  the  master  is  elected 
and  appointed  by  the  owners  ;  and  by  their  appointment  of 
him  to  a  place  of  trust  and  confidence,  they  hold  him  forth 
to  the  public  as  a  person  worthy  of  trust  and  confidence ; 
and  if  the  merchants  whom  he  deceives,  could  not  have 
redress  against  those  who  appointed  him,  they  would  often 
have  just  reason  to  complain  that  they  had  sustained  an  irre- 
parable injury  through  the  neglect  or  mistake  of  the  owners, 
as  the  master  is  seldom  of  ability  to  make  good  a  loss  of  any 
considerable  amount."  l 


and  there  had  and  received  the  said  last-mentioned  goods  and  merchandise, 
for  the  purpose  aforesaid  ;  yet  the  said  defendant,  not  regarding  his  duty 
in  that  behalf,  nor  his  said  last-mentioned  promise  and  undertaking,  but 
contriving  and  intending  to  injure  and  deceive  the  said  plaintiff  in  this 
behalf,  whilst  the  said  defendant  had  the  care  and  custody  of  the  said 
last-mentioned  goods  and  merchandise,  for  the  purpose  last  aforesaid,  took 
so  little  and  such  bad  care  of  the  same,  that  by  and  through  the  mere 
carelessness  and  negligence  of  the  said  defendant  in  that  behalf,  the  said 
last-mentioned  goods  and  merchandise,  being  of  the  value  aforesaid,  to 
wit,  on  the  day  and  year  aforesaid,  became  and  were  wholly  lost  to  the 
said  plaintiff,  to  wit,  at,  &c.  (venue)  aforesaid." 

[Add  a  general  count  for  not  taking  care  of  the  goods,  as  ante,  $  435, 
concluding  paragraph  of  note  3,  and  a  count  for  money  had  and  received,  if 
it  be  supposed  the  defendant  has  received  the  proceeds  of  the  goods.] 

1  Abbott  on  Shipp.  (5th  Am.  edit.)  165,  166.  The  owners  of  privateers 
are  in  like  manner  liable  for  any  torts  committed  by  the  master  and  crew, 
in  making  captures,  &c.  Ibid.  n.  1. 


CH.  XI.]  CARRIERS   OF   PASSENGERS.  491 


CHAPTER  XL 

OF   CARRIERS   OF  PASSENGERS. 

§  521.  [(1.)  Difference  as  to  Liability  between  Common 
Carriers  of  Passengers  and  Common  Carriers  of  Goods.} 
The  carriage  of  persons  as  passengers,  for  hire,  in  public 
conveyances,  is  comparatively  of  modern  practice ;  and 
although  suits  occurred  against  owners  of  coaches,  for  the 
loss  of  goods,  as  early  as  the  time  of  Lord  Holt,  yet  the  first 
case  it  seems,  to  recover  damages  by  a  person  for  injury 
done  to  him  as  a  passenger,  was  tried  in  1791,  before  Lord 
Kenyon.1  The  case  referred  to  was  White  v.  Boulton,2  in 
which  that  learned  Judge,  in  delivering  his  opinion,  said, 
"  When  these  [mail]  coaches  carried  passengers,  the  pro- 
prietors of  them  were  bound  to  carry  safely  and  properly." 
To  carry  "  safely  and  properly,"  or  "  safely  and  securely," 
is  the  obligation  which  the  law  imposes  upon  a  special  car- 
rier of  goods  for  hire,  or  a  carrier  of  goods  for  hire  who  is 
not  a  common  carrier  of  goods.  Common  carriers  of  pas- 
sengers, therefore,  are  subject  to  the  same  degree  of  liability 
as  private  carriers  for  hire,  of  goods,  which  is  a  liability  for 
all  consequences  resulting  from  the  want  of  such  care  as  the 
thing  or  person,  under  the  circumstances  of  the  case,  re- 
quires. But  this  undertaking,  whether  as  implied  by  law,  or 
as  created  by  an  express  promise,  does  not  insure  against  the 
forcible  attacks  of  robbers.3  And  herein  appears  the  differ- 
ence, in  respect  to  liability,  between  common  carriers  of  pas- 
sengers and  common  carriers  of  goods.  The  latter,  as  we 

1  See  opinion  of  Hubbard,  J.,  in  Ingalls  u.  Bills,  7  Met.  (Mass.)  R.  1. 

2  White  v.  Boulton,  Peake's  Cas.  81. 

3  See  ante,  $  60. 


492  LAW    OF   CARRIERS.  [cH.  XI. 

have  seen,1  are  responsible  for  all  damage  which  does  not 
fall  within  the  excepted  cases  of  the  act  of  God  and  the 
public  enemy.  The  policy  of  the  law  which  imposes  this 
extraordinary  responsibility,  it  is  obvious,  is  not  applicable 
to  the  persons  of  passengers,  although  it  is  properly  held  to 
apply  to  the  baggage  they  have  with  them ; 2  it  is  to  give 
security  to  property  against  clandestine  combination  with 
thieves,  &c.  And  as  the  law  holds  a  common  carrier  of 
goods  to  be  an  insurer,  he  is  entitled,  like  other  insurers,  to 
demand  a  premium  in  proportion  to  the  hazards  of  his  em- 
ployment.3 In  the  words  of  Mr.  Chief  Justice  Parker,  of 
New  Hampshire:  —  "Carriers  of  passengers,  for  hire,  are 
not  responsible,  in  all  particulars,  like  common  carriers  of 
goods.  They  are  not  insurers  of  personal  safety  against  all 
contingencies,  except  those  arising  from  the  acts  of  God  and 
the  public  enemy.  For  an  injury  happening  to  the  person  of 
a  passenger  by  mere  accident,  without  fault  on  their  part, 
they  are  not  responsible  ;  but  are  liable  only  for  want  of  due 
care,  diligence,  or  skill.  This  results  from  the  different 
nature  of  the  case.  But  in  relation  to  the  baggage  of  their 
passengers,  the  better  opinion  seems  to  be,  that  they  are 
responsible  like  other  common  carriers  of  goods."  4 

§  522.  Attempts  have,  nevertheless,  been  made  to  extend 
the  responsibility  of  carriers  of  passengers,  as  to  their  per- 
sons, to  all  injuries  except  those  arising  from  the  act  of  God 
or  from  the  public  enemy  ;  but  the  support  of  the  doctrine 
has  been  uniformly  resisted,  although  a  very  strict  responsi- 

1  Ante,  Chap.  VI. 

2  Ante,  $  107-117,  317-323. 

3  Ante,  $  151  -  154.     The  rule  of  law  which  relates  to  the  transporta- 
tion of  goods  was  changed  as  commerce  advanced,  from  motives  of  policy, 
and  the  strict  rule  above  referred  to,  being  introduced  for  general  commer- 
cial objects,  has  no  application  to  persons.     Boyce  v.  Anderson,  2  Peters, 
(U.  S.)  R.  150.     When  the  rule  was  changed,  see  ante,  §  149. 

4  Bennett  v.  Button,  10  N.  Hamp.  R.  481  ;  and  see  Hawkins  v.  Hoff- 
man, 6  Hill,  (N,  Y.)  R.  586. 


CH.  XI.] 


CARRIERS   OF   PASSENGERS. 


493 


bility  as  to  the  persons  of  passengers  is  imposed  upon  such 
carriers.1  The  carrier  has  not,  and  cannot  have  the  same 
control  over  persons  that,  he  has  over  inanimate  matter,  and 
therefore  the  law  regulating  the  responsibility  of  common 
carriers  of  goods  does  not  apply  to  the  carrying  of  human 
beings  of  no  greater  intelligence  than  that  of  slaves,  a  de- 
scription of  persons,  who,  in  the  nature  of  things,  and  in 
their  character,  resemble  passengers,  rather  than  packages 
of  goods.  Hence,  the  responsibility  of  the  carrier  of  them 
should  be  measured  by  the  law  which  is  applicable  to  pas- 
sengers, rather  than  that  which  is  applicable  to  the  carriage 
of  common  goods  and  chattels.  A  slave  has  volition  and  has 
feelings,  which  cannot  be  disregarded,  and  properties  of  this 
nature  it  is  impossible  to  overlook  in  conveying  him  from 
place  to  place.2 

§  523.  In  the  case  of  the  Camden  and  Amboy  Railroad 
Company  v.  Burke,3  the  Court  consider  that  the  proprietors 
of  public  conveyances  are  liable  at  all  events  for  the  baggage 
of  passengers ;  but  as  to  their  persons,  they  are  liable  only 
for  the  want  of  such  care  and  diligence  as  is  "  characteristic 
of  cautious  persons." 4  Such  then  is  the  difference  in  re- 
spect to  responsibility,  between  common  carriers  of  goods 
and  chattels  and  common  carriers  of  the  persons  of  passen- 
gers ;  the  former  being  liable  for  all  damage  not  occasioned 


1  Aston  v.  Heaven,  2  Esp.  R.  533 ;  Story  on  Bailm.  §  590  ;  2  Stark. 
Ev.  (1st  Am.  edit.)  344  ;  2  Greenl.  Ev.  §  221.     Sir  James  Mansfield,  in 
Christie  v.  Griggs,  2  Campb.  R.  79,  says,  there  is  a  difference  between  a 
contract  to  carry  goods  and  a  contract  to  carry  passengers;  for  the  goods 
the  carrier  is  answerable  at  all  events,  but  he  did  not  warrant  the  safety  of 
his  passengers ;  his  contract  with  them  was  to  provide  for  their  safe  con- 
veyance, as  far  as  human  care  and  foresight  would  go.     And  see  2  Kent, 
Comm.  600,  601. 

2  Boyce  t>.  Anderson,  2  Peters,  (U.  S.)  R.  150.     See  also  ante,  §  122. 

3  Camden  &  Amboy  Railroad  Co.  v.  Burke,  13  Wend.  (N.  Y.)  R.  626. 

4  See  also  the  opinion  of  Chief  Justice  Marshall,  in  Boyce  v.  Anderson, 
2  Peters,  (U.  S.)  R.  155  ;   Stokes  v.  Saltonstall,  13  Ibid.  181. 

42 


494  LAW   OF    CARRIERS.  [CH.  XI. 

by  the  act  of  God,  &c.,  and  the  latter  not  being  liable  for 
any  injuries,  unless  in  case  of  the  want  of  that  circumspec- 
tion and  diligence  which  is  "  characteristic  of  cautious  per- 
sons,"  where  the  limbs,  lives,  and  health  of  human  beings  are 
at  their  control.  There  are,  undoubtedly,  certain  risks  which 
are  incurred  by  all  travellers  in  public  vehicles,  for  which  the 
proprietors  of  them  are  not  responsible  ;  and  these  are  casu- 
alties which  human  sagacity  cannot  foresee,  and  against  which 
the  utmost  prudence  cannot  guard.  If,  for  instance,  a  gun 
should  be  fired  so  near  a  stage-coach  as  to  frighten  the  horses, 
and  they,  becoming  unmanageable,  upset  the  coach  and  injure 
a  passenger,  he  is  without  remedy  as  against  the  driver  or  his 
employers.  But  for  damage  done  to  goods  in  consequence 
of  such  an  event,  in  the  hands  of  a  common  carrier  of  them, 
he  would  be  liable.  Every  wayfarer  in  a  public  vehicle  must 
make  up  his  mind  to  meet  the  risks  incident  to  the  mode  of 
travel  he  adopts;  risks  which  cannot  be  avoided  by  the 
utmost  degree  of  care  and  skill  in  the  preparation  and  man- 
agement of  the  means  of  conveyance.  A  guaranty  to  this 
extent  is  the  only  one  given  for  the  protection  of  the  way- 
farer's person  by  the  proprietors  of  the  line.1  But  the  liability 
of  common  carriers  of  passengers,  as  it  has  been  determined 
and  measured  by  Courts  of  justice,  will  be  better  compre- 
hended by  first  considering  the  duties,  from  a  departure  from 
which  their  liability  proceeds. 

§  524.  [(2.)  Their  Duty  to  receive  Persons  as  Passengers.] 
The  distinction  between  a  public  or  common  carrier  of  per- 
sons and  a  private  or  special  carrier  of  the  same,  is,  that  it  is 
the  duty  of  the  former  to  receive  all  persons  who  apply  for 
a  passage.  From  the  cases  which  establish  that  a  person 
who  represents  himself  to  the  public  as  a  common  carrier 
of  goods,  cannot  refuse  to  convey  them  from  his  accustomed 
place  of  setting  out  to  his  usual  place  of  destination,  pro- 

i  See  the  opinion  of  the  Court  in  McKinney  v.  Niel,  1  McLean,  (Cir. 
Go.)  R.  540. 


CH.  XI.]     THEIR  DUTY  TO  RECEIVE  PASSENGERS.       495 

vided  he  has  room  in  his  coach  or  wagon  ; l  and  also  from 
the  general  principle  recognized  in  instances  similar  to  the 
carriage  of  passengers  by  public  carriers  of  them,  (such,  for 
example,  the  case  of  an  innkeeper  who  hangs  out  a  sign  and 
opens  a  house  for  travellers,)  it  follows  that  there  is  an  im- 
plied engagement  on  the  part  of  public  carriers  of  persons 
not  to  refuse  those  who  apply  for  seats  by  their  conveyance, 
the  privilege  of  travelling  in  such  a  manner,  provided  there 
is  room  for  them,  and  a  tender  of,  or  offer  to  pay,  the  fare,  is 
made  at  the  time.2  The  case  of  Bretherton  v.  Wood,  is  a 
clear  authority  in  favor  of  this  view  of  the  law  ;  3  because  if 
the  principle  which  exists  in  the  case  of  carriers  of  goods  be 
attended  to,  viz.  that  they  are  public  servants,  and  therefore 
responsible  for  a  refusal  to  perform  their  duties,  it  will  be 
clear  that  carriers  of  persons  are  in  this  respect  equally  bound 
to  attend  to  the  interests  of  the  community  ;  the  case  refer- 
red to  having  established,  that  in  an  action  against  stage-coach 
proprietors,  for  an  injury  to  a  passenger,  by  a  coachman  up- 
setting the  coach,  the  declaration  may  be  framed  in  tort  for  a 
breach  of  duty  by  negligence  of  servants.  The  Court  ob- 
served :  —  "If  it  were  that  the  present  action  was  founded 
on  a  contract,  so  that  to  support  it,  a  contract  between  the 
parlies  to  it  must  have  been  proved,  the  objection  that  is  now 
made  would  be  deserving  of  consideration.  But  we  are  of 
opinion  that  the  action  is  not  so  founded.  This  is  an  action 
on  the  case  against  common  carriers,  upon  whom  a  duty  is 
imposed  by  the  custom  of  the  realm,  or  in  other  words,  by 
the  Common  Law,  to  carry  and  convey  goods  and  passen- 
gers, safely  and  securely,  so  that  by  their  negligence  or 
default  no  damage  or  injury  may  happen.  A  breach  of  this 
duty  is  a  breach  of  the  law ;  and  for  this  breach  an  action 


1  See  ante,  $  123  -  125,  356. 

2  That  an  absolute  tender  is  not  necessary,  and  that  an  offer  to  pay  is 
enough,  see  ante,  §  418. 

3  See  5  Petersdoif,  Abr.  48. 


496  LAW    OF   CARKIERS.  [CH.  XI. 

lies,  founded  on  the  Common  Law,  and  which  requires  not 
the  aid  of  a  contract  to  support  it."  1 

§  525.  It  is  in  fact  beyond  all  doubt,  that  the  first  and  most 
general  obligation  on  the  part  of  common  carriers  of  passen- 
gers, whether  by  land  or  by  water,  is  to  carry  persons  who 
apply  for  transportation  ;  and  the  obligation  results  from  their 
setting  themselves  up,  like  innkeepers,  and  common  carriers 
of  goods,  for  a  common  public  employment  for  hire.  It  is 
nevertheless  true,  that  the  obligation  is  subject  to  the  qualifi- 
cations, that  the  regular  fare  be  tendered,  or  there  be  an  offer 
to  pay  it ;  that  there  be  sufficient  room ;  that  freshets  in  a 
river  do  not  render  it  impracticable  or  dangerous  to  cross  a 
ferry  ; 2  and  that  the  applicant  is  not  an  unfit  person  to  be 
received  as  a  passenger,  and  that  he  had  no  design  to  injure 
the  carrier  in  his  business.3  In  Jencks  v.  Coleman,4  in  which 

1  Bretherton  v.  Wood,   (Ex.   Ch.)  3  Bro.   &  Bing.  R.   54.     Action 
against  the  defendant,  who  kept  chaises  for  hire,  for  refusing  to  carry  the 
plaintiff,  who  had  his  luggage  tied  on,  and  had  got  into  the  chaise,  when 
the  owner  insisted  on  a  previous  payment  of  the  hire,  which  was  charged 
exorbitantly.     The  plaintiff  tendered  him  the  regular  fare,  and  the  sum 
which  had  at  first  been  agreed  on  to  be  taken,  but  afterwards  refused.     It 
was  held  by  Lord  Ellenborough,  that  although  the  owner  might  make  his 
own  regulation,  or  any  special  contract,  and  insist  upon  his  own  established 
mode  of  dealing,  yet  after  the  person  was  in  the  chaise  and  tendered  the 
money.it  was  too  late  to  object  to  complete  the  journey  ;  the  owner  of  the 
chaise  was  bound  to  proceed ;  and  if  the  jury  found  the  tender,  the  plain- 
tiff was  entitled  to  recover.     Messiter  v.  Cooper,  4  Esp.  R.  260. 

2  The  ferry-man  has  a  right  to  refuse  to  go  until  the  water  falls,  and  the 
danger  subsides  ;  and  the  law  gives  him  the  right  to  judge  when  it  is  proper 
for  him  to  cross  or  not.     Cook  v.  Gourdin,  2  Nott  &  McCord,  (S.  C.)  R.  19. 

3  Story  on  Bailm.  §  591 ;  Ansell  v.  Waterhouse,  2  Chitt.  R.  1  ;  Jencks 
v.  Coleman,  2  Sumn.  (Cir.  Co.)  R.  221  ;  Bennett  v.  Button,  10  N.  Hamp. 
R.  481  ;  Markham  v.  Brown,  8  Ib.  523  ;  Commonwealth  v.  Power,  7  Met. 
(Mass.)  R.  596.     The  owners  of  railroads,  says  Chancellor  Walworth, 
may  be  prosecuted  for  damage  sustained  if  they  refuse  to  transport  an 
individual,  without  any  reasonable  excuse,  upon  being  paid  the  usual  rate 
of  fare.     Beekman  v.  Schenectady  and  Saratoga  Railroad  Co.  3  Paige, 
(N.  Y.)  Ch.  R.  45.    And  see  post,  $  609. 

4  Jencks  v.  Coleman,  ub.  sup. 


CH.  XI.]         THEIR  DUTY.    TO   RECEIVE  PASSENGERS.  497 

the  defendant  was  captain  of  a  steamboat,  the  subject  of 
obedience  to  reasonable  regulations  came  directly  before  the 
Court,  and  Mr.  J.  Story  said :  "  There  is  no  doubt  that  this 
steamboat  is  a  common  carrier  of  passengers  for  hire,  and, 
therefore,  the  defendant,  as  commander,  was  bound  to  take 
the  plaintiff  as  a  passenger  on  board,  if  he  had  suitable  ac- 
commodations, and  there  was  no  reasonable  objection  to  the 
character  or  conduct  of  the  plaintiff.  The  question  then 
really  resolves  itself  into  the  mere  consideration  whether 
there  was,  in  the  present  case,  upon  the  facts,  a  reasonable 
ground  for  the  refusal.  The  right  of  passengers  to  a  passage 
on  board  of  a  steamboat  is  not  an  unlimited  right.  But  it  is 
subject  to  such  regulations  as  the  proprietors  may  prescribe, 
for  the  due  accommodation  of  passengers,  and  for  the  due 
arrangement  of  their  business.  The  proprietors  have  not 
only  this  right,  but  the  farther  right  to  consult  and  provide 
for  their  own  interests  in  the  management  of  such  boats,  as  a 
common  incident  to  their  right  of  property.  They  are  not 
bound  to  admit  passengers  on  board,  who  refuse  to  obey  the 
reasonable  regulations  of  the  boat,  or  who  are  guilty  of  gross 
and  vulgar  habits  of  conduct ;  or  who  make  disturbances  on 
board  ;  or  whose  characters  are  doubtful  or  dissolute  or  sus- 
picious ;  and  a  fortiori,  whose  characters  are  unequivocally 
bad.  Nor  are  they  bound  to  admit  passengers  on  board, 
whose  object  is  to  interfere  with  the  interest  or  patronage  of 
the  proprietors,  so  as  to  make  the  business  less  lucrative  to 
them." 

§  526.  The  proprietors  of  a  stage-coach  or  of  a  railroad, 
who  hold  themselves  out  as  common  carriers  of  passengers, 
are  of  course  bound,  in  the  same  manner,  to  receive  all  who 
require  a  passage,  so  long  as  they  have  room,  and  they  have 
none  of  the  above-mentioned  legal  excuses  for  a  refusal. 
That  they  run  a  coach  or  a  car  in  connection  with  another, 
which  extends  the  line  to  a  certain  place,  and  have  agreed 
with  the  proprietor  of  such  other  coach  or  train  of  cars  not 
to  receive  passengers  who  come  from  that  place,  on  certain 

42* 


498  LAW   OF    CARRIERS.  [CH.  XI. 

days,  unless  they  come  by  his  conveyance,  is  not  a  legal 
excuse.  The  proprietors,  by  a  notice  brought  home  to  the 
individual,  have  no  right  to  limit  their  general  duty  in  this 
manner.1 

§  527.  The  case  of  Bennett  v.  Button,  in  New  Hamp- 
shire,2 showed  that  the  defendant  was  one  of  the  proprietors, 
and  the  driver,  of  a  stage-coach,  running  daily  between 
Amherst  and  Nashua,  which  connected,  at  the  latter  place, 
with  another  coach,  running  between  Nashua  and  Lowell, 
and  thus  formed  a  continuous  mail  and  passenger  line  from 
Lowell  to  Amherst,  and  onward  to  Francestown.  A  third 
person  run  a  coach  to  and  from  Nashua  to  Lowell ;  and  the 
defendant  agreed  with  the  proprietor  of  the  coach  connecting 
with  his  line,  that  he  would  not  receive  passengers  who  came 
from  Lowell  to  Nashua  in  the  coach  of  such  third  person,  on 
the  same  day  that  they  applied  for  a  passage  to  places  above 
Nashua.  The  plaintiff  was  notified,  at  Lowell,  of  this  ar- 
rangement, but,  notwithstanding,  came  from  Lowell  to 
Nashua  in  that  coach,  and  then  demanded  a  passage  in  the 
defendant's  coach  to  Amherst,  tendering  the  regular  fare. 
It  was  held,  that  the  defendant  was  bound  to  receive  the 
plaintiff  as  a  passenger,  there  being  sufficient  room,  and  no 
evidence  that  the  plaintiff  was  an  unfit  person  to  be  admit- 
ted, or  that  he  had  any  design  of  injuring  the  defendant's 
business. 

§  527  a.  The  place  of  receiving  passengers  and  the  hour  of 
starling  which  passenger  carriers  are  bound  to  observe  and 
conform  to,  are  those  which  they  hold  out  to  the  public,  and 
which  thus  become  in  the  nature  of  a  special  contract.  Evi- 
dence of  the  usual  course  of  a  stage-office  for  passengers  to 
call  there  and  register  their  names  in  the  stage-book,  where 
they  are  to  be  called  for,  is  evidence  to  affect  the  parly  with 


Bennett  v.  Button,  10  N.  Hamp.  R,  481.  a  Ub.  sup. 


CH.  XI.]    THEIR  DUTY  TO  RECEIVE  PASSENGERS.        499 

notice.1  Railway  companies  are  liable  to  the  institution  of 
legal  proceedings  against  them,  for  not  running  their  trains 
in  conformity  with  their  regular  official  time  tables  ;  the  time 
tables  being  of  the  nature  of  special  contracts,  so  that  any 
deviation  from  them  renders  the  company  liable.2 

§  528.  The  duty  to  receive  persons  as  passengers  upon  a 
tender  of  the  fare,  if  there  be  sufficient  room,  involves  the 
obligation  that  he  shall  not  be  over-crowded,  after  he  has 
paid  his  fare  and  taken  his  seat,  and  be  thereby,  as  it  were, 
expelled.  The  contract  must  be  fairly  performed.  Thus,  if 
coach  proprietors  take  more  than  the  legal  number  upon  the 
coach,  a  passenger  may  refuse  to  occupy  his  seal,  and  sue 
for  expenses  incurred,  for  the  contract  entered  into  by  them 
must  be  performed  in  terms.3  And  also  if  places  be  taken 
for  several  persons  to  go  inside  a  coach  together,  it  is  a  breach 
of  the  contract  if  the  owner  only  provides  distinct  seats  for 
them.4 

§  529.  It  undoubtedly  is  one  of  the  qualifications  to  the 
obligation  of  common  carriers  of  passengers  to  receive  per- 
sons as  such  who  apply,  that  they  are  at  liberty  to  reject  ap- 
plicants whose  object  in  obtaining  a  passage  is  to  interfere 
with  the  proprietors  of  the  conveyance,  so  as  to  make  their 
business  of  transporting-  passengers  less  lucrative  to  them. 
This  was  the  subject-matter  of  controversy  in  Jencks  v. 
Coleman,6  in  which  it  was  said  by  Mr.  J.  Story  :  "  Now, 
what  are  the  circumstances  of  the  present  case  ?  Jencks 
(the  plaintiff)  was,  at  the  time,  the  known  agent  of  the  Tre- 
mont  line  of  stage-coaches.  The  proprietors  of  the  Benja- 
min Franklin  (the  steamboat)  had,  as  he  well  knew,  entered 
into  a  contract  with  the  owners  of  another  line  (the  Citizens' 

1  Whitesell  v.  Crane,  8  Watts  &  S.  (Penn.)  R.  369. 
a  See  Boston  "  Railway  Times  "  of  December,  1849. 

3  Long  v.  Home,  1  C.  &  Payne,  R.  610. 

4  Ibid. 

5  2  Sumn.  (Cir.  Co.)  R.  221. 


500  LAW    OF    CARRIERS.  [CH.  XI. 

Stage  Coach  Company)  to  bring  passengers  from  Boston  to 
Providence,  and  to  carry  passengers  from  Providence  to 
Boston,  in  connection  with,  and  to  meet  the  steamboats  ply- 
ing  between  New  York  and  Providence,  and  belonging  to 
the  proprietors  of  the  Franklin.  Such  a  contract  was  im- 
portant, if  not  indispensable,  to  secure  uniformity,  punctual- 
ity, and  certainty  in  the  carriage  of  passengers  on  both  routes ; 
and  might  be  material  to  the  interests  of  the  proprietors  of 
those  steamboats.  Jencks  had  been  in  the  habit  of  coming 
on  board  these  steamboats  at  Providence,  and  going  therein 
to  Newport ;  and  commonly  of  coming  on  board  at  Newport, 
and  going  to  Providence,  avowedly  for  the  purpose  of  solicit- 
ing passengers  for  the  Trernont  line,  and  thus  interfering 
with  the  patronage  intended  to  be  secured  to  the  Citizens' 
line  by  the  arrangements  made  with  the  steamboat  propri- 
etors. He  had  the  fullest  notice,  that  the  steamboat  propri- 
etors had  forbidden  any  person  to  come  on  board  for  such 
purposes,  as  incompatible  with  their  interests.  At  the  time 
when  he  came  on  board,  as  in  the  declaration  mentioned, 
there  was  every  reason  to  presume,  that  he  was  on  board  for 
his  ordinary  purposes  as  agent.  It  has  been  said,  that  the 
proprietors  had  no  right  to  inquire  into  his  intent  or  motives. 
I  cannot  admit  that  point.  I  think,  that  the  proprietors  had 
a  right  to  inquire  into  such  intent  and  motives ;  and  to  act 
upon  the  reasonable  presumptions,  which  arose  in  regard  to 
them.  Suppose,  a  known  or  suspected  thief  were  to  come 
on  board  ;  would  they  not  have  a  right  to  refuse  him  a  pas- 
sage ?  Might  they  not  justly  act  upon  the  presumption,  that 
his  object  was  unlawful  ?  Suppose,  a  person  were  to  come 
on  board,  who  was  habitually  drunk,  and  gross  in  his  be- 
havior, and  obscene  in  his  language,  so  as  to  be  a  public 
annoyance  ;  might  not  the  proprietors  refuse  to  allow  him  a 
passage  ?  I  think  they  might,  upon  the  just  presumption  of 
what  his  conduct  would  be.  It  has  been  said  by  the  learned 
counsel  for  the  plaintiff,  that  Jencks  was  going  from  Provi- 
dence to  Newport,  and  not  coming  back  ;  and  that  in  going 
down,  there  would,  from  the  very  nature  of  the  object,  be  no 


CH.  XI.]    THEIR  DUTY  TO  RECEIVE  PASSENGERS.        501 

solicitation  of  passengers.  That  does  not  necessarily  follow  ; 
for  he  might  be  engaged  in  making  preliminary  engagements 
for  the  return  of  some  of  them  back  again.  But,  supposing 
there  were  no  such  solicitations,  actual  or  intended,  I  do  not 
think  the  case  is  essentially  changed.  I  think,  that  the  pro- 
prietors of  the  steamboat  were  not  bound  to  take  a  passenger 
from  Providence  to  Newport,  whose  object  was,  as  a  sta- 
tioned agent  of  the  Tremont  line,  thereby  to  acquire  facili- 
ties, to  enable  him  successfully  to  interfere  with  the  interests 
of  these  proprietors,  or  to  do  them  an  injury  in  their  business. 
Let  us  take  the  case  of  a  ferryman.  Is  he  bound  to  carry  a 
passenger  across  a  ferry,  whose  object  is  to  commit  a  tres- 
pass upon  his  lands  ?  A  case,  still  more  strongly  in  point, 
and  which,  in  my  judgment,  completely  meets  the  present, 
is  that  of  an  innkeeper.  Suppose  passengers  are  accus- 
tomed to  breakfast,  or  dine,  or  sup  at  his  house  ;  and  an 
agent  is  employed  by  a  rival  house,  at  a  distance  of  a  few 
miles,  to  decoy  the  passengers  away,  the  moment  they  arrive 
at  the  inn  ;  is  the  innkeeper  bound  to  entertain  and  lodge 
such  an  agent,  and  thereby  enable  him  to  accomplish  the 
very  objects  of  his  mission,  to  the  injury  or  ruin  of  his  own 
interests  ?  I  think  not.  It  has  been  also  said,  that  the 
steamboat  proprietors  are  bound  to  carry  passengers  only 
between  Providence  and  New  York,  and  not  to  transport 
them  to  Boston.  Be  it  so,  that  they  are  not  absolutely  bound. 
Yet  they  have  a  right  to  make  a  contract  for  this  latter  pur- 
pose, if  they  choose  ;  and  especially,  if  it  will  facilitate  the 
transportation  of  passengers,  and  increase  the  patronage  of 
their  steamboats.  I  do  not  say,  that  they  have  a  right  to  act 
oppressively  in  such  cases.  But  certainly,  they  may  in  good 
faith  make  such  contracts,  to  promote  their  own,  as  well  as 
the  public  interests.  The  only  real  question,  then,  in  the 
present  case,  is,  whether  the  conduct  of  the  steamboat  pro- 
prietors has  been  reasonable  and  bond  fide.  They  have  en- 
tered into  a  contract  with  the  Citizens'  line  of  Coaches,  to 
carry  all  their  passengers  to  and  from  Boston.  Is  this  con- 
tract reasonable  in  itself;  or  is  it  designed  to  create  an 


502  LAW   OF   CARRIERS.  [CH.  XI. 

oppressive  and  mischievous  monopoly  ?  There  is  no  pre- 
tence to  say,  that  any  passenger  in  the  steamboat  is  bound  to 
go  to  or  from  Boston  in  the  Citizens'  line.  He  may  act  as 
he  pleases.  It  has  been  said  by  the  learned  counsel  for  the 
plaintiff,  that  free  competition  is  best  for  the  public.  But 
that  is  not  the  question  here.  Men  may  reasonably  differ 
from  each  other  on  that  point.  Neither  is  the  question  here, 
whether  the  contract  with  the  Citizens'  line  was  indispens- 
able, or  absolutely  necessary,  in  order  to  insure  the  carriage 
of  the  passengers  to  and  from  Boston.  But  the  true  question 
is,  whether  the  contract  is  reasonable  and  proper  in  itself, 
and  entered  into  with  good  faith,  and  not  for  the  purpose  of 
an  oppressive  monopoly.  If  the  jury  find  the  contract  to  be 
reasonable  and  proper  in  itself,  and  not  oppressive,  and  they 
believe  the  purpose  of  Jencks  in  going  on  board  was  to 
accomplish  the  objects  of  his  agency,  and  in  violation  of  the 
reasonable  regulations  of  the  steamboat  proprietors,  then  their 
verdict  ought  to  be  for  the  defendant ;  otherwise,  to  be  for 
the  plaintiff." 

§  530.  Another  qualification  to  which  the  prima  facie  duty 
of  the  owners  of  stage-coaches,  railroads  and  steamboats  to 
receive  persons  who  apply  for  a  passage,  on  tender  of  the 
fare,  is  their  privilege  of  prescribing  all  reasonable  regulations 
in  respect  to  the  admission  of  persons  into  their  carriages, 
depot,  &C.1  Where  the  entrance  of  innkeepers,  or  their 
servants,  into  a  railroad  depot,  to  solicit  passengers  to  go  to 
their  inns,  is  an  annoyance  to  passengers,  or  an  interruption 
to  the  railroad  officers  in  the  performance  of  their  duties,  the 
superintendent  of  the  depot  may  make  a  regulation  to  pre- 
vent persons  from  going  into  the  depot  for  such  purpose  ; 
and  if  they,  after  notice  of  such  regulation,  attempt  to  violate 
it,  and,  after  notice  to  leave  the  depot,  refuse  to  do  so,  the 
superintendent  and  his  assistants  may  forcibly  remove  them  ; 
using  no  more  force  than  is  necessary  for  that  purpose.  So, 

1  See  opinion  of  Story,  J.,  in  Jencks  v.  Coleman,  ub,  sup. 


CH.  XI.]    THEIR  DUTY  TO  RECEIVE  PASSENGERS.       503 

if  an  innkeeper  who  has  frequently  entered  a  railroad  depot, 
and  annoyed  passengers  by  soliciting  them  to  go  to  his  inn, 
receives  notice  from  the  superintendent  of  the  depot  that  he 
must  do  so  no  more,  and  he  nevertheless  repeatedly  enters 
the  depot  for  the  same  purpose,  and  afterwards  obtains  a 
ticket  for  a  passage  in  the  cars,  with  the  bond,  fide  intention  of 
entering  the  cars  as  a  passenger,  and  goes  into  the  depot  on 
his  way  to  the  cars,  and  the  superintendent,  believing  that  he 
had  entered  the  depot  to  solicit  passengers,  orders  him  to  get 
out,  and  he  does  not  exhibit  his  ticket,  nor  give  notice  of  his 
real  intention,  but  presses  forward  towards  the  cars  ;  and  the 
superintendent  and  his  assistants  thereupon  forcibly  remove 
him  from  the  depot,  using  no  more  force  than  is  necessary  for 
that  purpose,  such  removal  is  justifiable,  and  not  an  indictable 
assault  and  battery.1 

1  Commonwealth  v.  Power,  7  Met.  (Mass.)  R.  596.  In  the  Court  of 
Common  Pleas,  in  Massachusetts,  (Essex  county,  1849,)  an  action  of  tres- 
pass was  brought  against  a  railroad  conductor,  for  ejecting  the  plaintiff 
from  the  cars  of  the  Boston  and  Maine  Railroad,  which  was  under  the  fol- 
lowing circumstances  :  The  plaintiff  got  into  the  cars  at  Lawrence  with  a 
ticket  for  North  Andover,  and  the  rule  of  the  railroad  was,  that  passengers 
must,  immediately  after  starting,  surrender  their  tickets,  or  pay  their  fares 
if  they  have  no  tickets  or  be  turned  out  of  the  cars  by  the  conductor. 
The  plaintiff,  when  asked  for  his  ticket,  by  the  defendant,  showed  it,  but 
refused  to  give  it  up  at  that  time,  (alleging  that  on  former  occasions  he 
had  been  turned  out  of  the  cars  after  giving  up  his  ticket,)  but  promising 
to  give  it  up  when  near  the  end  of  the  route.  There  was  no  stopping 
place  between  Lawrence  and  North  Andover.  The  conductor  then  stop- 
ped the  train,  and  on  the  plaintiff's  persisting  in  his  refusal,  put  him  out 
by  force.  Mellen,  J.,  ruled,  that  the  regulation  of  the  road  was  reason- 
able, and  that  the  plaintiff  had  no  right  to  retain  his  ticket  till  he  had  got 
near  the  end  of  the  route,  even  if  he  had  not  previously  known  of  the 
rule  ;  and  that,  on  his  refusal  to  give  it  up,  the  conductor  was  justified  in 
ejecting  him  with  a  reasonable  degree  of  force.  The  question  left  to  the 
jury  was,  whether  unnecessary  force  was  used  ;  and  the  Judge  observed, 
that  the  jury  on  this  point  would  not  be  nice  in  scanning  the  acts  of  the 
conductor  in  the  line  of  his  duty,  but  would  make  allowance  for  any  little 
irritation  on  his  part  produced  by  the  conduct  of  the  plaintiff.  The  ver- 
dict was  for  the  defendant.  Loring  v.  Aborn,  reported  for  the  Boston 
Daily  Advertiser,  of  January  3,  1849. 


504  LAW   OF   CARRIERS.  [CH.  XI. 

§  530  a.  The  propriety  and  necessity  of  rules  and  restrict- 
ions as  to  the  entering  upon  the  grounds  appropriated  to  a 
railroad,  and  that  authority  rnay  be  properly  exercised  by  the 
superintendent  and  agents  of  the  company,  in  enforcing  such 
rules  and  regulations,  having  for  their  object  the  public  con- 
venience, and  the  quiet  and  safety  of  travellers,  as  recog- 
nized, in  the  above  case,  were  adhered  to  in  Hall  v.  Power.1 
Still,  the  Court  in  this  case  held  the  law  to  be,  that  the  super- 
intendent of  a  railroad  station  has  not  a  right  to  order  a  per- 
son to  leave  the  station  and  not  to  come  there  any  more,  and 
to  remove  him  therefrom  by  force,  if  he  does  come,  merely 
because  such  person,  in  the  judgment  of  the  superintendent, 
and  without  proof  of  the  fact,  had  violated  the  regulations 
established  by  the  company,  or  had  conducted  himself  offen- 
sively to  the  superintendent.  And,  in  the  trial  of  an  action 
for  assault  and  battery,  brought  against  such  superintendent 
for  expelling  the  plaintiff  from  the  station,  for  a  supposed 
violation  of  one  of  the  company's  established  regulations,  the 
defendant  cannot  give  evidence  of  former  violations  by  the 
plaintiff,  of  other  regulations  established  by  the  company. 

§  530  b.  Owners  of  railroads,  and  also  those  of  steamboats, 
in  respect  of  the  propriety  of  their  making  reasonable  regula- 
tions for  the  conduct  of  all  persons  resorting  to  them,  and  to 
their  power  to  enforce  such  regulations,  are  in  a  condition  in 
some  degree  similar  to  that  of  an  innkeeper,  whose  premises 
are  open  to  all  guests  ;  yet  he  is  not  only  empowered,  but  he 
is  bound,  so  to  regulate  his  house,  as  well  with  regard  to  the 
peace  and  comfort  of  his  guests,  who  there  seek  repose,  as  to 
the  peace  and  quiet  of  the  vicinity,  as  to  repress  and  prohibit 
all  disorderly  conduct  therein  ;  and  of  course  he  has  a  right, 
and  is  bound,  to  exclude  from  his  premises  all  disorderly  per- 
sons, and  all  persons  not  complying  with  regulations  neces- 
sary and  proper  to  secure  such  quiet  and  good  order.2 

1  Hall  v.  Power,  12  Met.  (Mass.)  R.  482. 

2  Per  Shaw,  C.  J.,  in  Commonwealth  v.  Power,  7  Met.  (Mass.)  R.  601. 


CH.  XI.]    THEIR  DUTY  TO  RECEIVE  PASSENGERS.       505 

Where  an  innkeeper  in  a  town  through  which  lines  of  stages 
pass,  and  at  whose  inn  the  stages  stop,  permits  the  drivers  of 
some  of  the  lines  to  resort  to  his  house  without  objection, 
he  cannot  exclude  the  driver  of  a  rival  line  from  entering  the 
common  public  rooms  Avhere  travellers  are  usually  placed, 
for  the  purpose  of  soliciting  passengers  for  his  coach  ;  pro- 
vided there  is  reasonable  expectation  that  passengers  are 
there,  and  he  goes  at  a  suitable  time,  and  conducts  with  pro- 
priety. But  this  right  is  forfeited  by  misconduct.  Thus,  if 
affrays  occur,  or  guests  are  disturbed  through  his  fault,  or  he 
is  guilty  of  other  abuse,  the  innkeeper,  for  the  protection  of 
himself,  or  his  guests,  may  prohibit  him  from  entering  until 
the  ground  of  apprehension  be  removed  ;  and  may  treat  him 
as  a  trespasser  if  he  enters  after  such  prohibition.1 

§  530  c.  In  some  of  the  States  where  slavery  is  permitted, 
a  suspicious  strange  negro  is  deemed  by  law  to  be  a  run- 
away, and  stage-proprietors  are  liable  to  the  master  of  a 
slave  for  taking  him  as  a  passenger,  knowing  him  to  be  a 
slave,  and  thus  aiding  his  escape  ;  they  are  bound  to  inquire 
with  due  diligence  into  the  condition  of  all  colored  passen- 
gers, and  suspicious  circumstances,  notice,  &c.,  require  the 
utmost  diligence.  The  question  came  before  the  Court  of 
Errors  and  Appeals  in  Delaware,  as  to  what  is  a  sufficient 
degree  of  diligence  in  such  cases.  A  colored  man  presented 
himself  in  the  night  at  a  place  where  passengers  were  usually 
taken  up,  and  with  nothing  any  more  suspicious  about  him, 
demanded  a  passage.  He  gave  his  name  and  residence,  and 
offered  written  evidence  of  his  freedom,  and  was  thereupon 
admitted  as  a  passenger,  but  was  set  down,  after  a  short  dis- 
tance, for  inability  to  pay  his  fare,  and  before  arrival  where 
his  papers  could  be  examined.  It  was  held,  that  this  did  not 
amount  to  a  want  of  proper  diligence,  though  the  negro 
should  turn  out  to  be  a  slave.2  Where  the  slave  of  the 

1  Markham  v.  Brown,  8  N.  Hamp.  R.  523. 

2  Redden  v.  Spruance,  4  Harring.  (Del.)  R.  R.  217.     As  to  the  car- 
riage of  slaves,  as  property,  see  ante,  §  122. 

43 


506  LAW   OF   CARRIERS.  [CH.  XI. 

plaintiff  was  carried  on  board  a  steamboat,  and  the  captain 
of  the  boat  on  the  eve  of  its  departure,  being  informed  of  the 
slave  being  on  board,  told  the  plaintiff's  agent  to  search  for 
her,  but  made  no  search  for  her  himself,  and  the  slave  was 
carried  off  in  the  boat  ;  the  Court  refused  to  permit  the  jury 
to  consider  whether  the  agent  of  the  defendants  was  guilty 
of  misconduct  or  negligence  in  permitting  the  escape  of  the 
slave,  and  held,  that  it  was  the  duty  of  the  master  of  the 
boat  to  have  made  such  a  search  as  would  have  prevented 
an  escape,  and  in  not  doing  so,  the  owners  of  the  boat  were 
responsible.1 

§  531.  (3.)  Their  Duty  to  carry  the  whole  Route.}  If  the 
usual  place  of  alighting  from  a  stage-coach  is  at  an  inn-yard, 
it  has  been  decided,  that  passengers  cannot  be  compelled  to 
get  out  even  at  the  inn-gate  ;  2  and  if  the  custom  is  to  carry 
the  passengers  to  their  own  homes,  or  lodgings,  in  a  particu- 
lar place,  that  must  be  conformed  to.3  A  fortiori,  if  the  pro- 
prietors agree  to  take  a  passenger  to  the  place  to  which  they 
profess  their  coach  or  car  to  go,  they  cannot  refuse  to  proceed 
at  any  intermediate  stage  ;  for  their  undertaking  is  absolute  ;  4 
and  hence,  in  case  of  accident,  they  would  be  bound  to  pro- 
vide another  conveyance.5  In  Weed  v.  The  Saratoga  and 
Schenectady  Railroad  Company,6  it  was  held,  that  if  a  rail- 
road company  contract  to  carry  passengers  and  their  baggage 
beyond  the  limits  of  their  own  road,  their  duty  as  carriers 
extends  through  the  whole  route,  in  respect  to  which  the 
contract  is  made.  The  defendants  in  this  case  having  un- 
dertaken to  carry  from  Saratoga  Springs  to  Albany,  were,  in 


1  Navigation  Company  v.  Hungerford,  6  G.  &  Johns.  (Md.)  R.  291. 

2  Dudley  v.  Smith,  1  Campb.  R.  167. 

3  Story  on  Bailm.  $  600. 

4  Jeremy  on  Carr.  23  ;  Story  on  Bailm.  $  600  ;  Ker.  v.  Mountain,  1  Esp. 
R.  27 ;  Messiter  v.  Cooper,  4  Esp.  R.  260. 

5  Jeremy,  ub.  sup. 

6  Weed  v.  Saratoga  and  Schenectady  Railroad  Co.  19  Wend.  (N.  Y.) 
R.  534. 


CH.  XI.]     DUTY  TO  CARRY  PASSENGERS  THE  WHOLE  ROUTE.      507 

the  opinion  of  the  Court,  estopped  from  saying  that  their  duty 
as  carriers  continued  no  farther  than  Schenectady,  the  termi- 
nation of  their  own  road.  In  order  to  limit  their  liability  to 
a  part  of  the  route,  they  should  at  least  have  given  notice 
that  after  the  car  struck  the  track  beyond  Schenectady,  the 
traveller  must  look  to  another  company,  if  in  fact  there  was 
another.1 

§  532.  Although  carriers  of  passengers  are  not  obliged  to 
admit  persons  who  are  notoriously  and  unequivocally  bad  ;  2 
yet,  supposing  a  person  to  be  of  infamous  character,  if  he 
has  paid  his  fare  and  has  been  admitted  as  a  passenger,  it 
furnishes  no  excuse  for  turning  him  out,  so  long  as  he  has 
not  been  guilty,  during  the  journey,  of  any  impropriety  of 
conduct  ;  and  none  for  treating  him  in  so  scandalous  and 
disgraceful  manner,  and  with  such  insulting  language,  as  to 
compel  him  to  leave  the  conveyance.3 


1  That  it  is  the  duty  of  carriers  to  carry  goods  to  the  place  to  which 
they  are  directed,  even  if  such  place  be  beyond  the  place  to  which  they 
usually  carry,  see  ante,  §  95-98. 

2  See  opinion  of  Story,  J.,  in  Jencks  «.  Coleman,  ub.  sup. 

3  A  declaration  in  assumpsit  to  carry  the  plaintiff  in  a  ship  to  a  certain 
place,  alleged  as  a  breach,  that  the  defendants,  by  their  agent,  caused  him 
to  be  disembarked  at  an  intermediate  point,  and,  by  their  said  agent, caused 
the  disembarkation  to  be  conducted  in  a  scandalous,  disgraceful,  and  im- 
proper manner,  whereby,  and  also  by  contemptuous  usage  and  insulting 
language  addressed  to  the  plaintiff  by  the  said  agent  in  effecting  said 
disembarkation,  the  plaintiff  sustained  damage.     It  was  held,  first,  that 
the  declaration  was  good  on  motion  in  arrest  of  judgment ;  secondly,  that 
the  Judge  at  Nisi  Prius  had  rightly  received  evidence  of  the  language  of 
the  captain  of  the  defendant's  ship  in  putting  the  plaintiff  on  shore,  in 
which  he  described  the  plaintiff  as  being  a  pickpocket,  and  belonging  to 
the  swell  mob ;  thirdly,  that  the  Judge  had  rightly  directed  the  jury,  that 
the  defendants  were  responsible  for  any  injury  naturally  resulting  from  the 
acts  of  the  captain,  when  acting  as  their  servant ;  and  that  the  plaintiff 
was  entitled  to  fair  compensation  for  the  injury  done  to  him  in  being  put 
on  shore  at  the  intermediate  place,  so  far  as  injury  arose  from  the  act  of 
the  captain  in  putting  him  on  shore.     Semble,  also,  that  supposing  the 
plaintiff  had  been  a  pickpocket,  or  belonged  to  the  swell  mob,  it  would  be 


508  LAW   OF   CARRIERS.  [CH.  XI. 

§  533.  Connected  with  the  duties  of  public  carriers  of  pas- 
sengers of  receiving  persons  who  offer  themselves  as  such, 
and  of  conveying  them  throughout  the  entire  route  they 
profess  to  convey  them,  is  the  duty  of  affording,  in  the 
progress  of  the  journey,  the  accommodations  they  profess  to 
afford.  Thus,  if  there  is  a  general  usage  to  allow  certain 
intervals  for  refreshment,  the  carrier  cannot,  at  his  pleasure, 
vary  such  usage  ;  for  it  may  be  that  such  usage  is  the  very 
reason  for  preferring  that  particular  conveyance  to  the  less 
accommodating  arrangement  of  another  line  of  conveyance.1 
In  other  words,  every  passenger  is  understood  to  contract  for 
the  usual  reasonable  accommodations.2 

§  534.  (4.)  Their  Duty  in  respect  to  Land-worthiness.] 
It  is  laid  down,  that  it  is  the  duty  of  public  carriers  of  passen- 
gers by  stage-coaches  to  provide  vehicles  reasonably  strong, 
with  suitable  harness,  trappings,  and  equipments.3  Lord 
Ellenborough  on  one  occasion  said  of  stage-coaches,  that 
they  must  be  "  land-worthy"  that  he  "  would  at  all  events 
expect  a  clear  '  land-worthiness '  in  the  carriage  itself  to  be 
established."4  The  question  arises  then,  what  is  such  land- 
worthiness,  or  as  it  is  sometimes  denominated  road-worthi- 
ness? as  will  answer  the  duty  imposed  in  this  respect  by  law  ? 


no  excuse  for  turning  him  out  of  a  ship  in  which  he  had  paid  his  passage, 
so  long  as  he  was  not  guilty  of  any  impropriety  on  board.  Coppin  v. 
Braithwaite,  8  Jur.  875—  Exch.  —  Cited  in  5  Harr.  Dig.  299. 

1  Jeremy  on  Carr.  23  ;  and  see  5  Petersdorf,  Abr.  48. 

2  Story  on  Bailm.  §  597.     It  is  on  the  same  principle,  that  travellers 
are  entitled  to  the  usual  reasonable  accommodations  of  an  inn. 

3  Ante,  §  274  ;  2  Steph.  N.  P.  983 ;  Story  on  Bailm.  §  592  ;  2  Kent, 
Comm.  600,  601  ;  Christie  v.  Griggs,  2  Campb.  R.  79  ;    Camden  and 
Amboy  Railroad  Co.  v.  Burke,  13  Wend.  (N.  Y.)  R.  611;  Hollister  v. 
Nowlen,  19  Ib.  234,  and  Appx.  xviii.  ;    Cole  v.  Goodwin,  19   Wend. 
(N.  Y.)   R.  251,  and  Appx.  p.  xxxiii. ;  McKinney  v.  Neil,  1  McLean, 
(Cir.  Co.)  R.  540  ;  Peck  v.  Neil,  3  Ib.  22  ;  Warew.  Gay,  11  Pick.  (Mass.) 
R.  106  ;  Ingalls  v.  Bills,  9  Met.  (Mass.)  R.  1. 

4  Israel  v.  Clark,  4  Esp.  R.  259. 

5  See  Ingalls  v.  Bills,  9  Met.  (Mass.)  R.  1. 


Cfl.  XI.]      THEIR  DUTY  IN  RESPECT  TO  LAND-WORTHINESS.       509 

In  a  case  in  which  the  declaration  staled,  that  the  defendant 
undertook  to  carry  the  plaintiff  safely,  Mr.  C.  J.  Best  said  : 
"  There  is  no  express  undertaking  that  the  coach  shall  be 
sound,  nor  is  it  necessary  ;  for  I  consider  that  every  coach 
proprietor  warrants  to  the  public,  that  his  stage-coach  is 
equal  to  the  journey  it  undertakes  ;  "  l  and  hence  it  becomes 
the  duty  of  a  proprietor  of  a  stage-coach  to  examine  it 
previous  to  the  commencement  of  every  journey.  Indeed, 
when  the  vehicle,  as  is  often  the  case,  is  crowded  with  pas- 
sengers, if  no  inspection  of  it  takes  place  immediately  pre- 
vious to  each  journey,  the  master  of  it  is  guilty  of  gross 
negligence.2  Such  was  the  case  in  Bremner  v.  Williams,3 
which  was  an  action  against  the  proprietor  of  a  stage-coach 
to  recover  compensation  for  an  injury  sustained  by  the  plain- 
tiff in  consequence  of  the  insufficient  state  of  the  defendant's 
coach.  It  was  proved,  that  the  plaintiff  and  his  two  sons  got 
into  the  dickey  of  the  coach  for  the  purpose  of  being  taken 
to  a  certain  town  on  the  route.  After  the  coach  had  started, 
the  plaintiff  felt  a  moving  of  the  dickey,  and  called  to  the 
driver  and  told  hirn  of  it,  and  asked  him  if  it  was  loose. 
The  driver  replied,  that  the  motion  was  produced  by  the 
bending  of  the  springs  merely,  and  then  drove  on  ;  and, 
soon  alter,  the  dickey  came  off,  and  the  plaintiff  fell.  On 
the  part  of  the  defendant,  the  driver  was  called  ;  who  stated, 
that  the  coach  had  come  from  the  coach-maker's  where  it  had 
been  under  repair,  only  three  or  four  days  before  the  acci- 
dent ;  that  it  was  not  a  very  old  coach  ;  and  that  he  and  his 
master  examined  it  on  the  very  morning  on  which  the  acci- 
dent happened.  But  on  his  cross-examination,  he  admitted, 
that  at  the  time  the  plaintiff  went,  the  coach  was  on  its  second 
journey,  and  that  no  examination  had  taken  place  immediately 
previous  to  that  journey.  Mr.  C.  J.  Best  told  the  jury,  that 


1  Bremner  v.  Williams,  1  C.  &  Payne,  R.  414. 

2  Ibid. ;  Ware  v.  Gay,  11  Pick.  (Mass.)  R.  106  ;  Ingalls  v.  Bills,  9  Met. 
(Mass.)  R.  1. 

3  Ub.  sup. 

43* 


510  LAW   OF   CARRIERS.  [CH.  XI. 

it  was  the  duty  of  the  proprietor  of  a  stage-coach  to  examine 
it  previous  to  the  commencement  of  each  journey  ;  and  they 
found  for  the  plaintiff  £51  damages. 

§  535.  The  duty  of  a  coach  proprietor  most  undoubtedly 
is  to  make  a  most  careful  and  thorough  examination  of  his 
vehicle  and  equipments  immediately  previous  to  each  jour- 
ney, and  this  is  the  full  extent  of  his  duty,  for  the  warranty 
on  his  part  implied  by  law  for  the  sufficiency  of  his  vehicle, 
does  not  extend  to  such  hidden  and  external  defects  as  can- 
not be  guarded  against  by  a  sound  judgment  and  the  most 
vigilant  oversight ;  which  in  fact  is  only  saying,  that  com- 
mon carriers  of  passengers  are  not,  like  common  carriers  of 
goods,  insurers.1  Too  much  weight,  it  has  been  considered, 
has  been  given  to  the  comparison  of  Bosanquet,  J.,  in  Sharp 
v.  Grey,2  viz.  that  a  coach  must  be  road-worthy  on  the  same 
principle,  that  a  ship  must  be  sea-worthy  ;  a  comparison 
which  is  certainly  not  correct,  unless  as  applied  to  the  car- 
riage of  goods,  or  baggage.3  In  that  case  the  axletree  of  a 
coach  was  broken,  and  the  plaintiff  injured.  The  coach 
was  examined,  and  no  defect  was  obvious  to  the  sight ;  but 
after  the  accident  a  defect  was  found  in  a  portion  of  the  iron 
bar,  which  could  not  be  discovered  without  taking  off  the 
woodwork  ;  and  it  was  proved,  that  it  was  not  usual  to 
examine  the  iron  under  the  woodwork,  as  it  would  rather 
tend  to  insecurity  than  safety.  It  did  not  appear,  that  the 
defect  could  not  have  been  seen,  on  taking  off  the  wood- 
work ;  but  it  would  rather  seem,  that  it  might  have  been 
discovered.  Park,  J.,  considered  it  a  question  of  fact  en- 
tirely ;  it  was  clear,  he  said,  that  there  was  a  defect  in  the 
axletree  ;  and  it  was  for  the  jury  to  say,  whether  the  acci- 
dent was  occasioned  by  what,  in  law,  is  called  negligence  in 
the  defendant,  or  not.  Tindal,  C.  J.,  also  puts  the  case  on 


1  See  ante,  $  150,  et  seq. 

2  Sharp  v.  Grey,  9  Bing.  R.  457. 

3  See  opinion  of  the  Court  in  Ingalls  v.  Bills,  9  Met.  (Mass.)  R.  1. 


CH.  XI.]      THEIR  DUTY  IN  RESPECT  TO  LAND-WORTHINESS.        511 

the  ground  of  negligence  and  want  of  proper  vigilance,  and 
not  on  the  ground  of  a  warranty  of  the  axletree,  like  that  of 
a  common  carrier  of  goods.  In  an  action  by  a  passenger 
against  the  proprietors  of  a  stage-coach  in  Massachusetts,1 
for  an  injury  occasioned  by  the  insufficiency  of  the  vehicle, 
the  proof  was,  that  the  accident  was  occasioned  by  the 
unscrewing  and  falling  off  of  a  nut  which  secured  the  right 
fore-wheel  of  the  carriage  to  its  axle.  It  appeared,  that 
while  the  coach  was  driven  at  a  moderate  rate  upon  a  plain 
and  level  road,  without  coming  in  contract  with  any  other 
object,  one  of  the  wheels  came  off,  in  consequence  of  the 
unscrewing  of  the  nut  in  question;  whereby  the  coach 
overset,  and  fell  upon  and  broke  the  plaintiff's  leg. 
Whether  this  was  owing  to  the  want  of  duty,  or  due 
care  on  the  part  of  any  of  the  defendant's  servants,  was 
left  to  the  jury ;  the  Court  holding,  that  the  evidence 
made  a  prima  facie  case  for  the  plaintiff. 

§  536.  The  true  doctrine  upon  this  subject  unquestionably 
is,  that  if  there  is  any  defect  in  the  original  construction  of 
a  stage-coach,  as  for  example,  in  an  axletree,  although  the 
defect  be  out  of  sight,  and  not  discoverable  upon  a  mere 
ordinary  examination,  yet  if  the  defect  might  be  discovered 
by  a  more  minute  examination,  and  any  damage  is  occa- 
sioned to  a  passenger  thereby,  the  coach  proprietors  are 
answerable  therefor  ;  and  the  same  rule  will  apply  to  any 
other  latent  defect,  which  might  be  discovered  by  more 
minute  examination,  which  renders  the  vehicle  not  land- 
worthy ,  and  a  damage  thereby  occurs  to  any  passenger.2  The 
rule  in  relation  to  this  particular  subject  which  will  probably 
be  always  observed  as  the  correct  one,  is  thus  very  intelli- 
gibly expressed  by  Baron  Alderson  in  the  above-mentioned 
case  of  Sharp  v.  Grey,3  in  which  he  says :  — "  A  coach 

1  Ware  v.  Gay,  11  Pick.  (Mass.)  R.  106. 

2  Story  on  Bailra.  §  592  ;  2  Steph.  N.  P.  983  ;  2  Stark.  Ev.  (3d  Lond. 
edit.)  295. 

3  Ante,  §  535. 


512  LAW   OF   CARRIERS.  [CH.  XI. 

proprietor  is  liable  for  all  defects  in  his  vehicle  which  can  be 
seen  at  the  time  of  construction,  as  well  for  such  as  may 
exist  afterwards,  and  be  discovered  on  investigation."  But 
that  a  coach  proprietor  is  liable  for  an  accident  in  conse- 
quence of  a  fracture  caused  by  an  original  internal  defect, 
undiscoverable  upon  the  closest  inspection,  and  unavoidable  by 
human  care,  skill,  and  foresight,  is  a  point  which  has  never 
been  sustained  by  any  decision.1  On  the  other  hand,  the 
Supreme  Court  of  Massachusetts  have  decided  (though  con- 
trary to  the  instructions  to  the  jury  in  the  Court  below,)  that 
where  a  passenger  in  a  stage-coach  received  an  injury  solely 
by  reason  of  the  breaking  of  one  of  the  iron  axletrees  in 
which  there  was  a  very  small  flaw,  entirely  surrounded  by 
sound  iron  one  fourth  of  an  inch  thick,  and  which  could  not 
be  discovered  by  the  most  careful  examination  externally,  the 
proprietor  of  the  coach  was  not  answerable  for  the  injury 
thus  received.2  The  result  at  which  the  Court  in  this  case 
arrived,  upon  a  careful  consideration  of  its  circumstances, 
was  as  follows :  —  "  That  carriers  of  passengers  for  hire,  are 
bound  to  use  the  utmost  care  and  diligence  in  the  providing 
of  safe,  sufficient,  and  suitable  coaches,  harnesses,  horses, 
and  coachmen,  in  order  to  prevent  those  injuries  which 
human  care  and  foresight  can  guard  against ;  and  that  if  an 


1  2  Greenl.  Ev.  §  222.     In  Christie  v.  Griggs,  2  Catnpb.  R.  79,  the 
axletree  of  the  coach  snapped  asunder  at  a  place  where  there  was  a  slight 
descent,  and  the  plaintiff  was  thrown  from  the  top  of  the  coach.     Sir 
James  Mansfield,  in  instructing  the  jury,  said  :  —  "As  the  driver  had  heen 
cleared  of  negligence,  the  question  for  the  jury  was  as  to  the  sufficiency 
of  the  coach.     If  the  axletree  was  sound,  as  far  as  human  eye  could  dis- 
cover, the  defendant  was  not  liable."     The  undertaking  of  the  proprietor 
of  the  coach,  as  to  the  passengers,  said  the  learned  Judge,  "  went  no 
farther  than  this,  that,  as  far  as  human  care  and  foresight  could  go,  he 
would  provide  for  their  safe  conveyance.     Therefore,"  he  continued  to 
say,  "  if  the  breaking  down  of  the  coach  was  purely  accidental,  the  plain- 
tiff had  no  remedy  for  the  misfortune  he  had  encountered."     See  also 
Israel  v.  Clark,  4  Esp.  R.  259;  Aston  v.  Heaven,  2  Ib.  533  ;  Crofts  v. 
Waterhouse,  3  Bing.  R.  321. 

2  Ingalls  v.  Bills,  9  Met.  (Mass.)  R.  1. 


CH.  XI.]     THEIR  DUTY  IN  RESPECT  TO  LAND-WORTHINESS.        513 

accident  happens  from  a  defect  in  the  coach,  which  might 
have  been  discovered  and  remedied  upon  the  most  careful 
and  thorough  examination,  such  accident  must  be  ascribed 
to  negligence,  for  which  the  owner  is  liable  in  case  of  injury 
to  a  passenger  happening  by  reason  of  such  accident.  On 
the  other  hand,  where  the  accident  arises  from  a  hidden  and 
internal  defect,  which  a  careful  and  thorough  examination 
would  not  disclose,  and  which  could  not  be  guarded  against 
by  the  exercise  of  a  sound  judgment,  and  the  most  vigilant 
oversight,  then  the  proprietor  is  not  liable  for  the  injury,  but 
the  misfortune  must  be  borne  by  the  sufferer,  as  one  of  that 
class  of  injuries  for  which  the  law  can  afford  no  redress  in 
the  form  of  a  pecuniary  recompense.  And  we  are  of  opinion 
that  the  instructions,  which  the  defendants'  counsel  requested 
might  be  given  to  the  jury  in  the  present  case,  were  correct 
in  point  of  law,  and  that  the  learned  Judge  erred  in  extend- 
ing the  liability  of  the  defendants  farther  than  was  proposed 
in  the  instructions  requested." 

§  537.  It  is  also  the  duty  of  coach  proprietors  to  guard 
against  a  mat-construction  of  the  coach  in  reference  to  the 
position  of  the  baggage.  In  an  action  against  the  proprietor 
of  a  stage-coach  employed  in  carrying  passengers  from 
Oxford  to  Leamington,  by  the  plaintiff,  who  was  thrown 
from  the  coach  and  seriously  bruised  ;  it  appeared  at  the 
trial,  that  the  plaintiff  took  her  seat  on  the  back  part  of  the 
coach,  having  both  her  hands  occupied  so  as  to  prevent  her 
holding  by  the  iron  railing  on  the  roof.  It  appeared  farther, 
that  there  was  a  considerable  quantity  of  luggage  upon  the 
roof  of  the  coach  ;  that  there  was  no  iron  railing  between 
the  luggage  and  passengers  ;  and  that  the  plaintiff,  being  so 
seated,  on  the  back  of  the  coach,  with  her  back  to  the  lug- 
gage, was,  by  a  sudden  jerk,  thrown  from  the  coach  in  a 
street  in  Oxford,  and  had  her  leg  broken.  Several  witnesses 
proved,  that  the  plaintiff  had  repeatedly  said  the  accident 
was  not  owing  to  any  fault  of  the  coachman,  but  to  the  fact 
of  having  her  hands  so  full,  so  as  to  prevent  her  holding  by 


514  LAW   OF   CARRIERS.  [CH.  XI. 

the  railing  when  the  jolt  took  place.  The  learned  Judge 
(Lyndhurst,  C.  B.)  directed  the  jury  to  find  for  the  plaintiff, 
if  they  were  of  opinion  that  the  injury  sustained  was  occa- 
sioned by  the  negligence  of  the  defendant  or  his  servant. 
The  jury  found  for  the  plaintiff;  and  they  stated  that  they  so 
found,  on  account  of  the  improper  construction  of  the  coach, 
and  of  the  luggage  being  on  the  seat.  On  motion  for  a  new 
trial,  Lord  Tenterden,  C.  J.,  said:  —  "I  think  the  direction 
of  the  learned  Judge  was  perfectly  right ;  for  the  mal-con- 
struction  of  the  coach,  or  improper  position  of  the  luggage, 
would  be  negligence  in  the  defendant  or  his  servants."  l 

§  537  a.  Ferrymen  whose  business  it  is  to  convey  passen- 
gers by  land  across  a  river  are  subject  to  the  same  rules  in 
regard  to  negligence,  and  they  become  liable  whenever  an 
injury  to  a  passenger  can  be  traced  to  the  slightest  neglect 
on  their  part.  A  ferryman  cannot  escape  liability  for  an 
injury  to  a  passenger  occasioned  by  the  narrowness  or  short- 
ness of  the  boat,  the  want  of  proper  railing,  or  any  like 
deficiency.  His  duty  is,  moreover,  to  have  the  landing-  in  a 
complete  state  of  repair  for  the  reception  of  travellers,  and 
to  furnish  proper  easements  for  entering  the  boat,  and  to 
provide  fastenings  to  keep  the  boat  in  a  firm  and  steady 
position  while  passengers  are  being  received.2 

§  538.  There  is  as  much,  if  not  more,  reason  why  the 
rules  of  the  Common  Law  above  laid  down  as  applicable 


1  Curtis  v.  Drinkwater,  2  B.  &  Aid.  R.  169. 

2  Cohen  v.  Hume,  1  McCord,  (S.  C.)  R.  439.     A  ferryman,  as  com- 
mander of  his  vessel,  and  the  keeper  of  the  ferry,  by  public  authority,  as 
well  as  from  the  liability  which  attaches  for  injuries,  is  to  have  the  sole 
and  entire  direction  and  management  of  the  boat ;  he  may,  or  may  not,  at 
his  election  and  pleasure,  constitute  passengers  his  agents.     They  are  to 
be  so  considered  in  every  instance  where  they  act  discreetly  and  in  sub- 
servience to  his  orders  ;  but  where  in  violation  of  his  authority  and  direc- 
tions, should  a  loss  happen  from  such  cause,  he  is  not  liable.    Ibid.     See 
ante,  §  165. 


CH.  XI.]     THEIR  DUTY  IX  RESPECT  TO  LAND-WORTHINESS.        515 

to  stage-coaches,  should  be  applicable  to  the  modern  mode 
of  conveyance  by  railroads ;  l  as  they  lake  the  place  of 
other  modes  of  conveyance  in  the  carrying  of  passengers.2 


1  See  ante,  §  78. 

2  Commonwealth  v.  Power,  7  Met.  (Mass.)  R.  596  ;  Eldridge  v.  Long 
Island  Railroad  Co.  1  Sand.  (N.  Y.)  R.  89;  Beers  v.  Housatonic  Rail- 
road Co.  19  Conn.  R.   566.     In   England,  provisions  are  made  by  the 
legislature  for  the  punishment  of  offences  committed  on  a  railway  and 
works  connected  therewith,  and  calculated  to  compromise  the  safety  of  the 
traffic  on  the  line  of  railway,  or  otherwise  to  interfere  with  the  due  con- 
duct of  the  company's  business.     There  are   two  cases   provided   for: 
1st,   offences   committed  by  persons   employed   upon   the  railway ;   and 
Sndly,  those  committed  by  persons  in  general.     1st.  An  officer  or  agent 
of  any  railway  company,  or  any  special  constable  duly  appointed,  and  all 
such  persons  as  they  may  call  to  their  assistance,  may  seize  and  detain 
any  engine  driver,  guard,  porter,  or  other  servant  in  the  employ  of  such 
company,  who  shall  be  found  drunk  while  employed  on  the  railway,  or 
who  shall  commit  any  offence  against  any  of  the  by-laws,  rules,  or  regu- 
lations of  such  company,  or  shall  wilfully,  maliciously,  or  negligently  do 
or  omit  to  do  any  act  whereby  the  life  or  limb  of  any  person  passing  along, 
or  being  upon  the  railway  belonging  to  such  company,  or  the  works  thereof 
respectively,  shall  be  or  might  be  injured  or  endangered,  or  whereby  the 
passage  of  the  engines,  carriages,  or  trains  shall  be  or  might  be  obstructed 
or  impeded,  and  convey  the  party  so  offending,  or  any  counselling,  aiding, 
or  assisting  in  such  offence,  with  all  convenient  despatch,  before  some  jus- 
tice of  the  peace,  for  the  place,  &c.     If  convicted,  the  offender  may  be 
imprisoned,  with  or  without  hard  labor,  for  a  period  not  exceeding  two 
months,  or  fined  a  sum  not  exceeding   10/.,  and  in  default  of  payment, 
may  be  imprisoned  for  the  above  period,  or  until  he  pays  the  fine.     3  &  4 
Viet.  c.  97,  s.  13.     The  justice,  instead  of  deciding  summarily,  may  send 
the  case  to  the  quarter  sessions,  and  in  the  mean  time  either  commit  the 
party  to  prison  or  take  bail  for  his  appearance,  with  or  without  sureties  ; 
if  convicted  at  the  quarter  sessions,  he  may  be  imprisoned,  with  or  without 
hard  labor,  for  any  period  not  exceeding  two  years.     The  above  provision 
for  the  punishment  of  the  servants  of  railway  companies,  is  now  extended 
and  made  to  embrace  not  merely  servants,  &c.  of  the  company,  but  like- 
wise all  persons  employed  either  by  the  company  or  any  other  person,  &c. 
in  conducting  traffic  upon  the  railway,  or  in  repairing  and  maintaining  the 
works  of  the  railway.     5  &  6  Viet.  c.  55,  s.  17.    2ndly.  Of  offences  com- 
mitted by  persons  in  general  to  the  obstruction  of  the  traffic  on  the  rail- 
way, trespasses,  &c.     Every  person  who  shall  wilfully  (3  &  4  Viet.  c. 
97,  s.  15)  do  or  cause  to  be  done,  any  thing  in  such  manner  as  to  obstruct 


516  LAW    OP   CARRIERS.  [CH.  XI. 

When  the  carriage  is  by  railroad,  the  railroad  company 
impliedly  warrants  the  road  itself  to  be  in  good  travelling 
order,  and  fit  for  use,  and  impliedly  promises  all  persons 
who  agree  to  become  passengers,  to  provide  road-worthy 
engines  and  carriages,1  with  suitable  equipments,  and  to  place 
each  carriage  on  a  proper  position  in  the  train.2  It  ap- 
pears, that  a  passenger  in  the  cars  upon  the  road  of  the  New 
York  and  Erie  Railroad  Company  has  recently  recovered 
a  verdict  of  $8000,  as  compensation  for  severe  injuries  sus- 
tained by  him  four  years  before,  maiming  him  for  life,  by  an 
accident  to  the  train  in  which  he  was.  The  accident  was 
caused  by  a  defect  in  one  of  the  wheels,  which  broke,  and  in 
consequence  thereof  the  cars  were  thrown  into  a  gully.3  Ac- 
cidents may  and  have,  in  our  country,  occurred  by  reason 
of  bridges  insecurely  constructed  for  the  passage  of  the  car- 
riages on  railroads.  In  England,  in  an  action  brought 


any  engine  or  carriage  using  any  railway,  or  to  endanger  the  safety  of 
persons  conveyed  in  or  upon  the  same,  or  shall  aid  or  assist  therein,  is 
guilty  of  a  misdemeanor,  and  being  convicted  thereof,  may  be  imprisoned, 
with  or  without  hard  labor,  for  any  time  not  exceeding  two  years.  And 
any  person  who  wilfully  obstructs,  &c.  any  officer,  &c.  of  the  company  in 
the  execution  of  his  duty  upon  the  railway,  &c.  and  refuses  to  depart 
upon  being  requested  so  to  do  by  any  officer,  &c.  of  the  company,  as  also 
any  one  aiding,  &c.  therein,  may  be  apprehended  and  taken  before  a  jus- 
tice of  the  peace,  &c.  and  fined  any  sum  not  exceeding  five  pounds,  and 
in  default  of  payment,  may  be  committed  for  any  term  not  exceeding  two 
calendar  months,  or  until  he  pays  the  fine. 

1  Carpue  v.  London  and  Brighton  Railway  Co.  5  Adol.  &  Ell.  R. 
(N.  S.)  747  ;  Palmer  v.  Grand  Junction  Railway  Co.  4  M.  &  Welsh.  R. 
749;  Bridge  v.  Grand  Junction  Railway  Co.  3  Ib.  244. 

2  So  ruled  by  Lord  Denman,  C.  J.,  in  Walker  v.  Southwestern  Rail- 
way Co.,  Kingston  Spring  Assizes,  1843,  Waif.  Sum.  of  Law  of  Rail- 
roads, 304. 

3  Oliver  v.  New  York  and  Erie  Railroad  Co.,  reported  in  the  "  New 
York  Express  "  for  October,  1848,  as  having  that  week  been  decided  in 
the  Circuit  Court  of  New  York,  held  at  Newburgh.     The  case  was  to  be 
carried  up  ;  but  it  was  understood,  that  the  Company,  before  the  suit  was 
brought,  offered  a  liberal  compromise  ;  but  as  they  regarded  the  claim 
made  by  the  plaintiff  as  one  of  extortion,  they  resisted  payment. 


CH.  XI.]     THEIR  DUTY  IN  KESPECT  TO  LAND- WORTHINESS.        517 

against  a  railway  company  for  compensation  for  injury 
received  by  the  plaintiff  by  the  breaking  down  of  a  bridge, 
over  which  he  was  passing  in  a  passenger-train,  it  was  held 
to  be  a  proper  question  for  the  jury,  whether  the  defendants 
had  engaged  the  services  of  a  competent  engineer,  who  had 
adopted  the  best  method  and  had  used  the  best  materials, 
and  that,  if  the  defendants  had  done  so,  they  would  not  be 
liable  ;  but  that  the  mere  fact  of  their  having  engaged  the 
services  of  such  a  person  would  not  relieve  them  from  the 
consequences  of  an  accident  arising  from  a  deficiency  in  the 
work.1 

§  539.  The  principle  which  renders  it  obligatory  upon  car- 
riers by  land  to  provide  against  an  improper  position  of  bag- 
gage, renders  it  obligatory  upon  the  owners  of  water-craft,  so 
to  construct,  arrange,  and  secure  the  implements  and  machin- 
ery on  board  for  the  management  of  their  vessel,  in  such  a 
manner  as  not  to  expose  to  injury  the  persons  of  passengers 
on  board,  by  wounding,  &c.  Where  the  plaintiff,  a  passenger 
in  a  steamboat,  from  Hartford  to  New  York,  in  an  action 
against  the  owners  for  injuries  sustained  by  him  through  the 
negligence  of  the  master,  having  proved  that,  on  the  arrival 
of  the  boat  at  the  dock  in  New  York,  the  chain-box  used  to 
keep  the  boat  in  trim,  was  so  insufficiently  secured,  that  it 
rolled  across  the  deck,  and  striking  against  the  plaintiff  threw 
him  overboard,  whereby  one  of  his  legs  was  broken,  and  his 
body  bruised,  offered  further  evidence  to  prove,  that  after  he 
was  taken  from  the  water,  and  while  sitting  upon  the  wharf, 
he  applied  to  the  master  for  some  of  his  men  to  assist  him 
into  a  carriage,  who  refused,  saying,  that  he  had  enough  for 
his  men  to  do  on  board ;  it  was  held,  that  such  evidence  was 
admissible,  first,  because  the  duty  and  conduct  of  the  master 
were  involved  in  the  transaction  in  question,  and  the  evidence 


1  Grote  v.  Chester  and  Holy  Head  Railway  Co.  2  Welsh.  Hurst.  & 
Gord.  R.  251.     And  see  Sharp  v.  Grey,  9  Bing.  R.  459,  and  ante,  §  536. 
44 


518  LAW   OP    CARRIERS.  [CH.  XI. 

was  a  part  of  the  res  gestce  • l  and  secondly,  because  the  evi- 
dence was  proper  for  the  purpose  of  showing  the  damage 
sustained.  As  to  the  duty  of  the  defendants  to  do  something 
more  than  merely  to  place  the  plaintiff  on  the  wharf,  and 
there  abandon  him,  without  the  power  of  removing  himself, 
the  Court  remarked  :  —  "  Whether,  under  such  circumstan- 
ces, the  law  does  not  require  them  to  go  farther,  and  do 
what  is  reasonable  and  necessary  to  place  him  in  a  situation 
where  he  might  be  taken  care  of;  we  do  not  think  it  neces- 
sary to  determine.  One  thing,  however,  is  certain  ;  if  the 
law  does  not  require  it,  humanity  does  ;  and  before  we  could 
sanction  as  law,  a  doctrine  so  contrary  to  the  dictates  of 
humanity,  we  should  require  satisfactory  reasons  in  support 
of  it."  2 

§  540.  (5.)  Their  Duties  in  respect  to  the  Character  and 
Competency  of  their  Servants.]  The  general  rule  as  to  all 
persons  professing  to  exercise  any  trade  or  employment  for 
all  persons  indifferently,  is,  that  they  are  bound  for  a  due 
application,  on  the  part  of  their  servants,  of  the  necessary 
attention,  art,  and  skill.3  Skill,  as  the  driver  of  a  stage- 
coach, or  as  the  engineer,  or  switch-tender  on  a  railroad, 
may  often  be  the  gist  of  an  action  by  a  passenger  for  the 
recovery  of  damages  for  injuries  received  from  accidents. 
Persons  so  employed  are  voluntary  agents,  and  profess  to 
have  skill  in  their  employment ;  and  they  are  employed  in 
business  which  demands  both  a  high  degree  of  skill  and  of 
firmness.  They  must  be  such  as  are,  in  the  first  place,  fully 
competent,  and  in  the  next,  careful  and  trustworthy  in  their 
general  character.  Upon  this  subject,  there  is  a  perfect 


1  See  ante,  §  468. 

2  Hall  v.  Connecticut  River  Steamboat  Co.  13  Conn.  R.  319. 

3  Physicians,  surgeons,  and  lawyers,  as  well  as  smiths  and  farriers, 
wherever  they  engage  their  services  for  hire,  are  responsible  for  the  skill 
and  art  necessary  to  accomplish  safely  what  they  undertake,  in  so  far  as 
ordinary  skill  and  art  can  accomplish  it.     See  ante,  §  434. 


CH,  XI.]       PASSENGER  CARRIERS  —  THEIR   SERVANTS.  519 

correspondence  between  the  American  and  the  English  law.1 
The  first  may  be  considered  to  have  been  stated  by  the  Court 
to  the  jury  in  Peck  v.  Niel,2  in  which  the  jury  were  told,  that 
every  person  who  establishes  a  line  for  the  conveyance  of 
passengers,  and  who  holds  out  inducements  to  persons  to 
travel  in  his  vehicles,  for  which  a  compensation  is  charged, 
is  bound  to  have  skilful  and  prudent  drivers ;  and  that  the 
utmost  skill  and  prudence  of  the  driver  must  be  exercised  to 
avoid  accidents.  The  English  doctrine  on  the  subject,  is  laid 
down  by  Mr.  Chief  Justice  Best  in  reference  to  stage-coaches, 
but  in  its  reasoning  it  will  equally  apply  to  railroads.  "  The 
coachman,"  says  this  learned  Judge,  "  must  have  competent 
skill,  and  use  that  skill  with  diligence ;  he  must  be  well 
acquainted  with  the  road  he  undertakes  to  drive  ;  he  must 
be  provided  with  steady  horses,  a  coach  and  harness  of  suffi- 
cient strength,  and  properly  made  ;  and  also  with  lights  by 
night.  If  there  be  the  least  failure  in  any  one  of  these  things, 
the  duty  of  the  coach-proprietors  is  not  fulfilled,  and  they 
are  answerable  for  any  injury  or  damage  that  happens."  3 

1  McKinney  v.  Niel,  1  McLean  (Cir.  Co.)  R.  540;  Farwell  v.  Boston 
and  Worcester  Railroad  Co.  4  Met.  (Mass.)  R.  49  ;  Carpue  v.  London 
and  Brighton  Railway  Co.  5  Adol.  &  Ell.  R.  (N.  S.)  747.     And  see  also 
McLane  v.  Sharpe,  2  Harring.  (Del.)  R.  481. 

2  Peck  v.  Niel,  3  McLean,  (Cir.  Co..)  R.  22. 

3  Crofts  v.  Waterhouse,  3  Bing.  R.  321.     It  has  been  very  properly 
suggested,  that  railroad  engineers  should  pass  examination  and  be  licensed 
as  such,  before  they  should  have  the  charge  of  a  passenger  train  at  least  — 
or  two  classes  might  be  licensed  ;  the  first  for  passenger  trains,  the  second 
for  freight  trains.     It  is  too  often  the  case,  that  engineers  run  trains  who 
are  incompetent  to  their  duty,  because  they  will  work  for  less  than  a 
properly  qualified  class.     But  what  is  termed  economy  is  too  much  the 
order  of  the  day,  and  is  but  a  spurious  economy;  and  the  practice  of  this 
doubtful  virtue  is  the  cause  of  many  collisions  of  trains,  of  running  off 
the  track,  and  of  running  down  travellers  at  points  where  the  iron  road 
crosses  the  public  highway,  upon  which  no  man  has  a  right  to  jeopardize 
another  person's  life  or  property,  who  is  peaceably  enjoying  his  or  her 
privilege  of  riding  or  walking  along,  by  night  or  by  day.     See  an  article 
entitled  "  Accidents  on  Railroads,"  in  the  Boston  Daily  Bee  of  December 
29,  1848. 


520  LAW   OF   CARRIERS.  [cH.  XI. 

§  541.  Jt  is  very  obviously  the  duty  of  the  proprietors  of 
all  public  lines  of  conveyance,  not  to  employ  as  their  ser- 
vants persons  of  intemperate  habits,  and  who  are  liable  to  be 
intoxicated  while  in  the  performance  of  the  journey  ; l  and 


i  Stokes  v.  Saltonstall,  13  Peters,  (U.  S.)  R.  181  ;  Wynn  v.  Allard, 
5  Watts  &  S.  (Penn.)  R.  544;  and  see  McKinney  v.  Niel,  1  McLean, 
(Cir.  Co.)  R.  540.  A  case  was  tried  in  the  Court  of  Queen's  Bench  at 
Montreal,  in  Canada,  in  which  the  plaintiff  was  one  of  the  passengers  on 
the  stage  which  ran  between  Prescott  and  Montreal,  and  which  was  driven 
into  the  river,  in  crossing  the  Grand  Bay,  opposite  to  Point  Valois,  in  the 
parish  of  Lachive,  by  which  accident  the  driver  of  the  stage  and  the 
horses  were  drowned  ;  and  the  plaintiff,  in  consequence  of  being  exposed 
all  nigh.t,  had  been  obliged  to  undergo  the  amputation  of  both  hands,  and 
had  lost  the  use  of  his  left  leg.  The  accident  happened  about  midnight 
on  10th  of  February,  1848  ;  and  it  appeared  that  the  night  was  a  bright 
star-light  night,  and  that  there  was  no  fog.  It  also  appeared  by  the  evi- 
dence of  one  of  the  passengers  that  the  driver  had  been  drinking  immod- 
erately before  the  stage  started,  and  that  he  believed  the  driver  to  be  intox- 
icated. The  reason  the  witness  made  no  objection  to  being  driven  by  this 
driver  on  this  account,  was  because  he  saw  no  one  at  the  inn  except  a  boy 
and  a  servant  girl.  The  boy  cautioned  the  witness,  that  the  driver  had 
been  drinking  too  much,  but  the  plaintiff  did  not  know  what  the  boy  had 
stated,  nor  did  the  witness  communicate  the  boy's  caution  to  the  plaintiff. 
The  jury,  after  being  charged  by  Mr.  Justice  Smith,  returned  a  verdict  of 
j£4,500.  In  his  charge  to  the  jury,  the  learned  Judge,  after  stating,  in 
general  terms,  the  duties  and  liabilities  of  public  carriers  of  passengers, 
said  :  — "  The  law  will,  (as  we  have  seen,)  in  tenderness  to  human  life 
and  human  limbs,  hold  the  proprietors  liable  for  the  slightest  negligence, 
and  will  compel  them  to  repel  by  satisfactory  proofs  every  imputation 
thereof."  From  this  statement  of  the  law  there  followed  three  proposi- 
tions :  1st.  That  defendants  were  not  liable  unless  the  injury  complained 
of  was  occasioned  by  the  ignorance,  want  of  diligence,  or  want  of  care  on 
the  part  of  the  driver,  and  the  simple  facts  afforded  primd  facie  evidence 
against  them :  2nd.  That  it  was  incumbent  on  the  defendants  to  prove 
that  the  driver  was  a  person  of  competent  skill,  good  habits,  well  quali- 
fied and  prepared  ;  and  that  he  acted  with  reasonable  skill  and  the  utmost 
prudence  on  the  occasion  in  question  :  3rd.  That  if  the  driver  were  a  per- 
son of  skill,  well  qualified  and  prepared  — if  the  accident  were  occasioned 
by  no  default  on  his  part;  but  was  the  result  of  inevitable  necessity,  then 
defendants  were  not  liable.  The  learned  judge  then  went  over  the  evi- 
dence, showing  how  it  bore  upon  the  foregoing  propositions,  and  remarked 
that  against  that  evidence  there  were  the  arguments  of  the  learned  counse 


CH.  XI.]    PASSENGER  CARRIERS  —  THEIR  SERVANTS.     521 

who  thus  become  liable  to  fail  in  the  exercise  of  that  sound 
and  reasonable  discretion  necessary  to  avoid  dangers  and 
difficulties ;  for  if  the  driver  of  a  stage-coach,  or  the  engineer 
on  a  railroad,  is,  under  any  circumstances,  guilty  of  miscon- 
duct, rashness,  or  negligence,  the  proprietors  will  be  respon- 
sible for  any  injury  resulting  therefrom.1  Thus,  the  coach- 
man, if  he  drives  with  reins  so  loose  that  he  cannot  manage 
his  horses,  the  proprietors  will  be  answerable ;  2  and  so,  if 
jn  passing  through  any  place  that  is  dangerous,  he  does  not 
inform  the  passengers  of  the  full  extent  of  the  danger.3  If 
the  driver,  when  any  danger  occurs,  does  not  take  the  safest 
course,  the  proprietor  is  responsible  for  the  mischief  which 
ensues.4  When  no  obstruction  exists,  the  driver  is  not  jus- 
tified in  deviating  from  the  accustomed  road.  Thus,  where 


for  the  defendants.  It  was  here  that  an  enlightened  and  judicious  jury 
would  bring  to  bear  that  knowledge  of  men  and  things  which  would  lead 
to  calm  appreciation  of  the  evidence.  They  would  consider  all  the  cir- 
cumstances proved  —  the  clearness  of  the  night,  the  distinctness  of  the 
road,  the  fact  that  the  coach  diverged  at  right  angles  from  the  road  —  and 
would  then  see  whether  they  must  believe  that  the  driver  fell  asleep  under 
the  influence  of  liquor,  and  only  knew  he  was  off  the  track  when  he 
plunged  into  the  river  ;  or  whether  they  would  believe  he  mistook  the 
headlands,  and  fell  into  this  disaster  in  consequence  of  that  circumstance 
happening  from  the  fog  or  other  state  of  the  weather,  without  fault  or 
neglect.  One  of  those  two  conclusions,  it  appeared  to  him,  must  be 
adopted.  If  they  should  be  in  favor  of  giving  damages  to  the  plaintiff,  it 
would  be  proper  for  them  in  assessing  the  amount,  to  take  into  considera- 
tion, his  extreme  sufferings  and  the  losses  sustained  by  the  derangement 
of  his  affairs.  It  was  not  for  him  to  recapitulate  the  dreadfully  painful 
story.  They  would  judge  of  all  the  circumstances,  and  give,  he  doubted 
not,  a  just  verdict."  The  foregoing  is  an  abstract  of  the  case  as  reported 
in  the  Montreal  Herald  of  March  27,  1849.  See  post,  §  547,  565. 

1  2  Kent,  Comm.  601,  602  ;  Story  on  Bailm.  §  598  ;  Stokes  v.  Salton- 
stall,  ub.  sup.  ;  Peck  v.  Niel,  3  McLean,  (Cir.  Co.)  R.  22 ;  McKinney  v. 
Niel,  1  Ib.  540. 

2  Aston  v.  Heaven,  2  Esp.  R.  533.     And  see  also  McKinney  v.  Niel, 
1  McLean,  (Cir.  Co.)  R.  540 ;  Cotteiill  v.  Starkey,  €  C.  &  Payne,  R. 
691. 

3  Dudley  v.  Smith,  1  Campb.  R.  167. 

*  Jackson  ».  Tollett,  2  Stark.  R.  37  ;  Mahew  v.  Boyce,  1  Ib.  423. 
44* 


522  LAW   OF    CARRIERS.  [CH.  XI. 

a  coach  was  upset  in  consequence  of  such  deviation,  and  an 
action  was  brought  for  a  consequent  injury,  the  Judge  told 
the  jury,  that  as  there  was  no  obstruction  in  the  road,  the 
driver  ought  to  have  been  kept  within  the  limits  of  it ;  and 
the  accident  having  been  occasioned  by  his  deviation,  the 
plaintiff  was  entitled  to  a  verdict ;  and  a  verdict  having 
been  returned  accordingly,  the  Court  granted  a  new  trial  on 
the  ground,  that  the  jury  should  have  been  directed  to  con- 
sider, whether  or  not  the  deviation  was  the  effect  of  negli- 
gence.1 On  the  same  principle,  if  the  driver  of  a  railroad 
engine,  by  negligence  or  unskilfulness,  causes  the  train  to  be 
thrown  off  the  rails,  the  railroad  company  is  responsible  for 
all  damages  and  injuries,  that  may  be  sustained  by  the  pas- 
sengers in  consequence.2  Misconduct  on  the  part  of  the 
driver  of  a  stage-coach  may  consist  in  overlading  the  coach 
with  baggage,  and  in  not  taking  care  to  adjust  the  weight  of 
it,  so  that  the  coach  is  not  made  top-heavy,  and  so  not  liable 
to  overset.3 

§  542.  In  an  action  on  the  case  for  negligence  and  miscon- 
duct on  the  part  of  the  driver,  the  declaration  stated,  that  the 
plaintiff  "  had  agreed  to  become  a  passenger  "  by  the  defend- 
ant's omnibus,  and  that  the  defendant  "  received  the  plaintiff 
as  such  passenger."  Plea,  that  the  plaintiff  did  not  become 
a  passenger,  and  that  the  defendant  did  not  receive  him  as 
such.  It  appeared  that  the  plaintiff  held  up  his  finger  to  the 
driver  of  the  omnibus,  who  stopped  to  take  him  up,  and  just 
as  the  plaintiff  was  putting  his  foot  on  the  step  of  the  omni- 


1  Crofts  v.  Waterhouse,  3  Bing.  R.  319.     If  the  driver  leaves  the  com- 
mon track  and  takes  one  not  used,  which  increases  the  risk,  it  is  evidence 
of  negligence.     McKinney  v.  Niel,  1  McLean,  (Cir.  Co.)  R.  540. 

2  Carpue  v.  London  and  Brighton   Railway  Co.  5  Adol.  &  Ell.  R. 
(N.  S.)  747  ;  Beers  v.  Housatonac  Railroad  Co.  19  Conn.  R.  566 ;  Far- 
well  v.  Boston  and  Worcester  Railroad  Co.  4  Met.  (Mass.)  R.  49. 

3  Long  v.  Home,  1  C.  &  Payne,  R.  612  ;  Israel  v.  Clark,  4  Esp.  R. 
259;  Aston  v.  Heaven,  2  Ib.  533;    Heard  ».  Mountain,  K.  B.,  1826, 
cited  in  5  Petersdorf,  Abr.  54. 


CH.  XI.]         PASSENGER  CARRIERS  —  RATE   OP   SPEED.  523 

bus,  the  driver  drove  on,  and  the  plaintiff  fell  on  his  face  on 
the  ground.  It  was  held,  that  this  was  evidence  to  go  to  the 
jury  in  support  of  the  declaration ;  as  the  stopping  of  the 
omnibus  implied  a  consent  on  the  part  of  the  driver  to  take 
the  plaintiff  as  a  passenger.1 

§  543.  (6.)  Their  Duties  in  the  progress  of  the  Journey  in 
respect  to  Rale  of  Speed.]  The  duties  of  the  driver  of  a 
stage-coach  in  driving  on  the  road  are  very  important,  and 
if  any  injury  occurs  to  a  passenger  in  consequence  of  furious 
driving,  the  proprietor  will  be  responsible.2  If  one  of  the 
linch-pins  come  out,  and  the  wheel  by  which  it  was  secured 
comes  off,  and  the  jury  are  of  opinion  that  the  accident  pro- 
ceeded from  such  rate  of  driving,  the  proprietor  is  responsible 
for  all  injury  thereby  done  to  the  passengers.3 

§  544.  There  has  been  a  case  in  this  country  which  author- 
ized very  exemplary  damages  by  the  jury,  to  a  stage-coach 
passenger,  for  injuries  which  he  received  in  consequence  of 
the  rash  and  furious  driving  of  the  coachman.  In  McKinney 
v.  Niel,4  it  appeared  that  the  defendant  was  an  extensive 
stage-proprietor,  and  run  the  lines  of  stages  from  Columbus 
to  Zanesville,  in  Ohio  ;  and  that  the  plaintiff,  being  in  Co- 
lumbus, took  a  seat  for  the  next  morning's  stage  to  Zanes- 
ville. It  was  observed  on  the  route,  by  the  passengers,  that 
the  driver  drove  very  fast ;  and  it  appeared,  that  after  a  short 
delay  at  Jack-Town,  the  driver  continued  on  his  route  at  the 
same  rapid  rate.  The  driver  passed  on  the  right  hand  side 
of  a  two-horse  wagon  of  a  Mr.  H.,  a  witness,  who  was  driv- 
ing in  the  same  direction  as  the  stage  ;  and  who,  hearing  the 
stage,  turned  his  horses  to  the  left,  which  gave  to  the  stage 


1  Brien  v.  Bennett,  8  C.  &  Payne,  R.  724. 

2  Stokes  v.  Saltonstall,  13  Peters,  (U.  S.)  R.  181  ;  Gough  v.  Bryan, 
5  Dowl.  P.  C.  765. 

3  Mayor  ».  Humphries,  1  C.  &  Payne,  R.  251. 

*  McKinney  v.  Niel,  1  McLean,  (Cir.  Co.)  R.  540. 


524  LAW   OF  CARRIERS.  [cH.  XI. 

more  than  half  the  road.  The  stage  passed  without  coming 
in  contact  with  the  wagon,  and  the  witness  observed  that  all 
the  horses  except  one,  which  Avas  a  very  fast  trotter,  were  in 
full  gallop.  The  stage  had  a  patent  lock  or  rubber,  but  the 
driver,  instead  of  using  the  lock  to  retard  the  progress  of  the 
stage,  in  descending  a  hill,  applied  the  whip  twice  within  the 
observation  of  the  witness  ;  and  the  hill  was  between  a  quar- 
ter and  a  half  a  mile  long.  After  passing  the  wagon,  the 
horses  ran  to  the  verge  of  the  right  hand  side  of  the  road, 
and  then  inclined  to  the  left.  The  plaintiff,  and  another  pas- 
senger on  the  outside,  remonstrated  with  the  driver  more  than 
once,  and  requested  him  to  use  the  lock  ;  but  he  refused  to 
do  so,  saying  to  them  there  was  no  danger.  The  horses  con- 
tinued their  direction  to  the  left,  until  the  near  wheels  of  the 
stage  ran  off  the  paved  road  a  foot  or  two,  and  continued  so 
to  run  some  two  or  three  rods,  when  the  horses  turned  to  the 
right,  and  the  stage  upset  with  great  violence.  The  ground 
where  this  occurred  was  nearly  level.  The  off-wheels  ran 
on  the  paved  road,  but  the  descent  was  small  from  the  paved 
to  the  unpaved  part  of  the  road  ;  and,  with  ordinary  good 
driving,  the  coach  could  have  been  in  no  danger  of  upsetting. 
It,  however,  did  upset,  and  at  the  time  of  the  accident  the 
speed  of  the  horses  was  about  as  great  as  it  had  been.  The 
consequence  was,  that  the  plaintiff  was  picked  up  shockingly 
and  dangerously  mangled  ;  and  so  serious  were  the  injuries 
he  received,  that  there  was  little  chance  that  he  would  ever 
entirely  recover  from  them.  The  Court,  in  their  charge  to 
the  jury,  told  them,  that  "  the  driver  must  not  only  be  skilful, 
but  he  is  bound  to  exercise  the  utmost  degree  of  care  ;  and 
if  they  should  think,  from  the  evidence,  that  in  commencing 
the  descent  of  the  hill  and  driving  down  it,  in  the  manner 
proved,  he  acted  imprudently  or  rashly,  the  defendant  was 
liable  ;  although  they  should  find  that  the  immediate  cause 
of  the  upset  was,  the  breaking-  of  the  lines.  "  The  least  de- 
gree," said  the  Court,  "  of  imprudence  or  want  of  care  in 
the  driver  fixed  the  liability  of  his  employers  ;  and  if,  in  the 
present  case,  in  descending  the  hill,  such  an  impetus  was 


CH.  XI.]       PASSENGER  CARRIERS  —  RATE   OF   SPEED.  525 

given  to  the  coach  as  to  render  it  difficult  and  hazardous  for 
the  driver  to  check  and  control  his  team,  the  defendant  was 
liable."  The  jury  returned  a  verdict  of  five  thousand  and 
three  hundred  and  twenty-Jive  dollars,  in  damages. 

§  545.  A  fortiori,  the  proprietors  of  a  stage-coach  will  be 
responsible  for  the  consequences  to  a  passenger  of  an  acci- 
dent occasioned  by  the  racing  of  his  driver  against  other 
coaches  ;  and  it  is  the  duty  of  a  driver  not  to  drive  unbroken 
and  vicious  horses,  and  not  to  excite  such  horses  as  are  broke 
and  not  naturally  vicious,  to  such  a  rate  of  speed,  that  they 
cannot  be  stopped,  or  properly  directed.1  In  all  cases  of  col- 
lision in  a  public  road,  if  the  jury  believe  that  a  driver  of  a 
vehicle  was  engaged  at  the  time  in  a  trial  of  speed,  the  jury 
may  give  very  exemplary  damages.2  In  the  Circuit  Court  of 
the  United  States,  for  the  seventh  Circuit,  in  the  year  1840, 
an  action  was  brought  for  an  injury  done  to  the  plaintiff's 
wife,  by  the  overturning  of  the  stage  through  the  careless- 
ness of  the  driver,  the  defendant  being  the  proprietor.  It 
appeared  that  there  were  two  stage  lines  on  the  route  be- 
tween Marietta  and  Zanesville,  Ohio  ;  and  that  one  carried 
the  mail.  Niel's  line  was  run  in  opposition  to  the  mail  line, 
and  Peck  and  his  wife  took  the  former  at  Zanesville  for  Ma- 
rietta. The  stages  left  Zanesville  at  about  the  same  hour. 
The  accommodation  sometimes  passed  the  mail  stage  whilst 
detained  at  a  post-office.  The  horses  in  both  lines  were 
driven  rapidly,  often  at  their  full  speed,  against  the  remon- 


1  Per  Best,  C.  J.,  in  his  charge  to  the  Wilts  Grand  Jury,  cited  in  note 
to  8  C.  &  Payne,  R.  694.     See  also  Monroe  v.  Leach,  7  Met.  (Mass.) 
R.  274  ;    Churchill  v.  Rosebeck,   15  Conn.  R.  359.     Though  a  party 
should  lose  all  control  of  his  horse,  in  driving,  in  a  public  road,  and  an 
injury  ensues  in  consequence,  yet  if  the  loss  of  control  was  the  result  of 
the  defendant's  prior  faults,  the  plaintiff  may  recover.     Kennedy  v.  Way, 
ub.  sup. ;  Chaflin  v.  Wilcox,  18  Vermt.  R.  605. 

2  Kennedy  v.  Way,  Sup.  Co.  of  Pennsylvania,  Nisi  Prius  Term  at 
Philadelphia,  March  23,  1850,  reported  in  Law  Rep.  for  August,  1850, 
p.  184. 


526  LAW   OF   CARRIERS.  [CH.  XI. 

strance  of  the  passengers  in  Niel's  accommodation  line. 
When  within  abont  six  miles  of  Marietta,  the  mail  stage 
overtook  the  other  about  a  quarter  of  a  mile  before  they 
reached  a  hill ;  the  driver  of  the  mail  coach  requesting  the 
other  driver  to  give  half  the  road  and  he  would  pass  him. 
The  driver  answered,  that  he  was  not  so  anxious  for  a  race 
as  that.  The  mail  driver  then  turned  his  horses  to  the  right, 
whipped  them  and  hallooed,  and  thus  started  the  horses  in 
the  other  stage,  which  had  been  moving  rather  slowly.  The 
horses  in  the  accommodation  stage  did  not  go  fast,  but 
jumped  ;  the  driver  struck  the  off-wheel  horse,  in  order,  as 
he  alleged,  to  bring  him  nearer  the  tongue,  and  give  half  the 
road  to  the  other  stage.  The  driver  pressed  the  lever,  and 
Donaldson,  who  sat  with  him,  raised  the  reins,  and,  with  the 
driver,  pulled  them.  The  other  coach  inclined  to  the  left, 
until  the  wheel  of  the  mail  coach  locked  in  the  fore-wheel  of 
the  other  coach,  broke  its  double  tree,  and  threw  the  stage 
and  horses  over  a  precipice,  whereby  the  plaintiff's  wife, 
Mrs.  Peck,  was  severely  injured.  Several  physicians  stated, 
that  her  health  by  this  injury  had  been  permanently  impaired, 
her  arm  disabled,  and  it  was  the  opinion  of  some,  that  the 
injury  she  received  would  probably  shorten  her  life.  There 
was  evidence  conducing  to  show  a  concerted  arrangement  be- 
tween the  two  drivers  in  regard  to  rating,  and  it  ivas  fully 
proved,  that  the  horses  in  both  stages  were  driven  over  a  greater 
part  of  the  route  in  a  most  rapid  and  reckless  manner,  against 
the  remonstrance  of  the  plaintiff,  Peck.  On  the  evidence,  the 
Court  charged  the  jury,  that,  to  exonerate  the  defendant  from 
liability,  he  must  show  that  every  precaution  was  used  by  his 
agent  to  prevent  the  injury  which  occurred  ;  that  every 
omission  of  duty  by  the  driver,  which  in  any  degree  increased 
the  risk  of  the  passengers,  subjected  the  defendant  to  dam- 
ages for  an  injury  done  them ;  that  although  the  upsetting  of 
the  coach  may  have  been  caused  immediately  by  the  driver 
of  the  mail  coach,  for  which  he  and  his  employers  were  liable 
to  damages,  still  if  Niel's  driver,  under  the  circumstances,  did 
not  use  all  the  means  which  a  skilful  and  prudent  driver  could 


CH.  XI.]        PASSENGER  CARRIERS  —  RATE   OF  SPEED.  527 

and  would  have  used  to  prevent  the  injury  done,  the  defend- 
ant was  liable.  The  jury  returned  a  verdict  for  the  plaintiff, 
and  assessed  the  damages  o.l  Jive  thousand  dollars.1 

§  546.  It  of  course  follows,  that  driving  so  rapidly  over  a 
railroad  by  the  servants  of  the  company,  as  to  amount  to 
rashness,  is  equally  inexcusable  ;  and  the  fact  of  rashness 
will  depend  much  upon  the  condition  of  the  road.  What 
would  not  be  an  improper  rate  of  speed  over  one  portion  of 
the  rails,  might  be  in  another,  as  for  instance,  where  the 
rails  are  sprung,  the  sleepers  broken,  or  the  bridges  not  road- 
worthy.  Evidence  may  unquestionably  be  given,  that  an 
injury  was  received  by  a  passenger  in  consequence  of  the 
improper  speed  with  which  cars  on  a  railroad  were  drawn 
over  a  spot  which  presents  the  obstructions  and  defects  like 
these  just  mentioned.2  In  short,  when  the  carriage  is  by 
railroad,  the  railroad  company  impliedly  warrants  the  road 
to  be  in  good  travelling  order  and  fit  for  use.  Then  again, 
supposing  the  condition  of  the  road  itself  to  be  ever  so  good, 
the  conductor  of  the  train  is  guilty  of  misconduct,  by  en- 
deavoring to  drive  his  train  to  a  certain  station  before  it  is 
reached  by  a  counter  train  j  for  if  the  conductors  of  both 
trains  a.re  governed  by  the  same  idea,  the  passengers  are 
exposed  to  the  dangers  of  a  collision. 

§  547.  The  liability  of  the  passenger  carrier,  for  a  neglect 
of  duty  in  respect  to  rapid  and  furious  driving,  will  be  the 
same,  although  the  injury  resulting  to  the  passenger  there- 
from is  occasioned  by  his  own  act,  as  by  leaping  from  the 
vehicle,  when  the  state  of  peril  will  justify  it.  Such  an  act 
the  law  deems  a  natural  and  prudent  precaution  to  extricate 
a  person  from  peril,  for  which  the  proprietor  of  the  line 


1  Peck  &  Wife  v.  Niel,  3  McLean,  (Cir.  Co.)  R.  22. 

2  Carpue  v.  Brighton  and  London  Railway  Co.  5  Adol.   &  Ell.  R. 
(N.  S.)  747.     And  see  Farwell  v.  Boston  and  Worcester  Railroad  Co.  4 
Met.  (Mass.)  R.  49. 


528  LAW    OF    CARRIERS.  [CH.  XI. 

would  have  been  liable.  The  case  of  Jones  v.  Boyce,1  was 
an  instance  of  this  sort,  although  the  coach  in  which  the 
plaintiff  was  a  passenger,  was  not  actually  overturned.  In 
the  before-mentioned  case  of  McKinney  v.  Niel,2  in  which  it 
appeared  that  the  plaintiff  recovered  heavy  damages,  where 
the  coach,  on  the  roof  of  which  he  was  travelling,  was  upset 
by  the  recklessness  of  the  driver  in  fast  driving ;  it  was 
evident  from  the  manner  of  the  injury,  that  the  plaintiff 
attempted  to  jump  from  the  coach,  and  that  the  top  of  it 
must  have  fallen  upon  him.  In  Stokes  v.  Saltonstall,  in  the 
Supreme  Court  of  the  United  States,3  which  was  an  action 
for  damages  against  the  owners  of  a  line  of  stage-coaches 
from  Baltimore  to  Wheeling,  it  appeared  that  the  defendant 
in  error,  with  his  wife,  had  been  passengers  in  one  of  the 
coaches  which  was  upset,  by  reason  of  which  the  wife  had 
several  bones  in  her  body  broken,  and  was  otherwise  greatly 
injured.  It  was  proved,  that  at  the  last  change  of  horses 
before  the  accident,  the  passengers  generally  remarked,  that 
the  driver  seemed  to  have  drank  loo  much  to  go  on.  When 
the  coach  arrived  at  a  certain  part  of  the  route,  the  passen- 
gers felt  the  coach  strike  against  a  mound  or  ridge  on  the 
right  side  of  the  road.  The  husband,  on  perceiving  this, 
immediately  jumped  out,  as  was  believed  with  the  intention 
of  stopping  the  horses  ;  his  wife  attempted  to  follow,  but  fell 
to  the  ground  at  the  instant  the  coach  upset,  and  it  fell  di- 
rectly on  her  ;  and  this  was  in  the  afternoon  in  broad  day- 
light ;  and  she  was  thereby  injured  in  the  manner  above- 
mentioned.  The  injury  was  occasioned  by  the  falling  of  the 
coach  on  her  body.  The  road  was  not  considered  dangerous 
or  difficult.  The  driver  was  believed  to  be  intoxicated,  and 
his  intoxication  believed  to  be  increased  by  his  drinking  with 
a  man  on  the  seat  along  side  of  him  ;  which  belief  was  pro- 
duced by  a  recklessness  and  irregularity  in  driving,  which 


1  Jones  ».  Boyce,  1  Stark.  R.  493. 

2  McKinney  v.  Niel,  1  McLean,  (Cir.  Co.)  R.  540  ;  and  ante,  §  544. 

3  Stokes  v.  Saltonstall,  13  Peters,  (U.  S.)  R.  181. 


CH.  XI.]       PASSENGER  CARRIERS  —  RATE   OF   SPEED.  529 

called  for  repeated  remonstrances  from  the  passengers.  He 
appeared  unfit  for  any  thing,  would  answer  no  question,  nor 
afford  the  least  assistance.  The  husband,  it  was  held,  was 
entitled  to  recover,  and  he  and  his  wife,  it  was  also  held,  had 
reasonable  ground  for  supposing  that  the  coach  would  upset ; 
although  the  jury  might  believe,  from  the  position  in  which 
the  coach  was  placed  by  the  negligence  of  the  driver,  the 
attempt  of  the  husband  and  his  wife  to  escape,  may  have 
increased  the  peril,  or  even  caused  the  coach  to  upset.  The 
same  doctrine  applies  equally  to  railroad  carriages  as  to  stage 
coaches.1 

§  548.  But,  undoubtedly,  where  the  injury  arises  to  a  pas- 
senger from  a  rash  and  undue  apprehension  of  danger  on  his 
part,  as  when  a  passenger,  thinking  himself  in  peril,  leaps 
from  a  stage-coach  to  save  himself,  when  in  reality  he  is  in 
no  peril,  the  coach  proprietor  will  not  be  liable.  It  is,  how- 
ever, a  delicate  point,  and  one  which  must  be  left  for  a  jury 
on  the  evidence  to  determine.2  In  Ingalls  v.  Bills,  in  Mas- 
sachusetts,3 at  the  trial  in  the  Court  of  Common  Pleas,  before 
Williams,  C.  J.,  the  plaintiff  introduced  evidence  tending  to 
prove,  that  on  the  23d  of  September,  1841,  he  and  several 
other  persons  took  outside  seats,  as  passengers,  on  the  top  of 
the  defendants'  coach,  to  be  conveyed  from  Boston  to  Cam- 
bridge ;  that  on  the  way,  in  Court  Street  in  Boston,  while 
proceeding  at  a  moderate  rate,  and  without  coming  in  contact 
with  any  thing,  the  hind  axletree  of  the  coach  broke,  one  of 
the  hind  wheels  came  off,  and  the  coach  settled  down  on  one 
side,  without  being  overset ;  that  the  plaintiff  and  some  other 
outside  passengers  jumped  from  the  top  of  the  coach  upon 
the  pavement;  and  that  the  plaintiff's  left  arm  was  thereby 
badly  injured.  The  defendants  insisted,  that  if  the  plaintiff 
jumped  from  the  coach  without  necessity,  and  that  necessity 


*  Eldridge  v.  Long  Island  Railroad  Co.  1-  Sand.  (N.  Y.)  R.  89. 

2  1  Bell,  Com.  372. 

3  Ingalls  v.  Bliss,  9  Met.  (Mass.)  R.  1-. 

45 


530  LAW   OP   CARRIERS.  [CH.  XI. 

brought  upon  him  by  them,  they  were  not  liable  ;  and  that 
although  a  passenger  might  have  jumped  off  without  impru- 
dence, his  jumping  off  was  to  be  considered  as  his  own  act, 
and  was  done  at  his  own  peril.  Upon  this  point,  the  learned 
Judge  directed  the  jury  to  inquire  whether  the  plaintiff's 
jumping  off  was,  under  the  existing  circumstances,  an  act  of 
reasonable  precaution  ;  and  instructed  them,  that  if  the  plain- 
tiff was  placed  in  such  a  perilous  situation  in  consequence  of 
the  defendants'  failure  to  fulfil  their  obligations,  that,  as  a 
prudent  precaution,  for  the  purpose  of  self-preservation,  he 
was  induced  to  leap  from  the  coach,  the  owners  were  answer- 
able for  any  injury  he  might  have  sustained  thereby  ;  although 
it  might  now  appear  that  he  might,  without  injury,  have  re- 
tained his  seat.  The  jury,  under  this  direction,  returned  a 
verdict  for  the  plaintiff. 

§  549.  (7.)  Their  Duly  as  to  an  Observance  of  the  proper 
Side  of  the  Road,  and  as  to  avoiding"  Collision.]  The  rules 
and  directions  for  the  mode  of  driving,  in  order  to  avoid  col- 
lision, upon  the  public  roads  and  highways  of  England,  have 
become  established  by  custom.  The  first  of  them  is,  that  in 
meeting,  each  party  shall  bear  or  keep  to  the  left ;  which  is 
the  reverse  of  the  rule  in  this  country  ;  that  is  to  say,  in  this 
country  each  party  shall  bear  or  keep  to  the  right.1  Secondly, 

*  By  the  Rev.  Stat.  of  Massachusetts,  c.  51,  travellers  in  carriages  who 
meet  on  a  road,  are  required,  under  a  penalty,  seasonably  to  drive  their 
carriages  to  the  right  of  the  middle  of  the  travelled  part  of  the  road  ;  and 
they  cannot  avoid  the  penalty  by  seasonably  turning  to  the  right  of  the 
wrought  part  of  the  road,  though  they  leave  sufficient  room  for  the  travel- 
lers whom  they  meet,  to  pass  with  convenience  and  safety,  in  the  use  of 
ordinary  care  and  skill.  With  regard  to  the  neglect  of  this  duty,  as  a 
public  offence,  it  can  make  no  difference  whether  sufficient  room  is  left  for 
the  other  party  to  pass,  if  he  had  not  also  been  guilty  of  negligence  in  not 
using  ordinary  care.  It  is  the  negligence  or  wrongful  act  of  the  defendant 
that  constitutes  the  public  offence,  irrespective  of  the  want  of  ordinary 
care  of  the  other  party.  Such  would  be  the  rule  as  to  an  indictment 
against  an  individual  for  a  nuisance  on  the  highway;  though  in  a  civil 
action  for  damages  by  a  party  travelling  on  such  road,  a  very  different  rule 


CH.  XI.]  PASSENGER  CARRIERS — PROPER  SIDE  OF  THE  ROAD.  531 

that  in  passing,  the  foremost  person  bearing  to  the  left,  the 
other  shall  pass  on  the  off-side.  Thirdly,  that  in  crossing, 
the  driver  shall  bear  to  the  left  hand,  and  pass  behind  the 
other  carriage.1  But  the  rule  is  not  inflexible,  in  England, 
that  a  driver  is  bound  to  keep  on  the  regular  side  of  the 
road  ;  although  if  he  does  not  keep  on  the  regular  side,  he 
is  bound  to  use  more  care  and  caution,  and  keep  a  better 
look-out  to  avoid  collision,  than  would  be  necessary,  if  he 
were  on  the  regular  or  proper  side.2  But  that  the  law  or 
usage  of  the  road  is  not  the  criterion  of  negligence  was  ex- 
pressly held  in  Wayde  v.  Carr.3  In  this  case,  the  defend- 
ant's carriage  was  on  the  wrong  side  of  the  road,  and  in 
attempting  to  pass  on  the  near  inside  of  the  off-side,  the 
plaintiff  sustained  damage  ;  and  it  was  held,  that  it  was  for 
the  jury  to  decide  the  question  of  negligence,  without  regard 
to  the  law  and  usage  of  the  road.  Whatever,  said  the  Court, 
might  be  the  law  of  the  road,  it  was  not  to  be  considered  as 
inflexible  and  imperatively  governing  a  case  of  this  descrip- 
tion. "  In  the  crowded  streets  of  a  metropolis,  where  this 
accident  happened,  situations  and  circumstances  might  fre- 
quently arise  where  a  deviation  from  what  is  called  '  the  law 
of  the  road,'  would  not  only  be  justifiable  but  absolutely 
necessary.  Of  this  the  jury  were  the  best  judges,  and,  inde- 
pendently of  the  law  of  the  road,  it  was  their  province  to 
determine  whether  the  accident  arose  from  the  negligence  of 


might  be  applicable.  Commonwealth  ».  Allen,  11  Met.  (Mass.)  R.  403. 
In  a  complaint,  under  the  statute  above  referred  to,  against  a  traveller  for 
not  driving  his  carriage  to  the  right  of  the  middle  of  the  travelled  part  of 
the  road,  it  is  not  necessary  to  set  forth  a  particular  description  of  the  road. 
Ibid.  See  post,  $  556  -  563.  That  the  rule,  in  this  country,  is  to  take  the 
right  side  of  the  road,  Wilson  w.  Rockland  Man.  Co.  2  Harr.  (Del.)  R.  481. 

1  2  Steph.  N.  P.  984;  5  Petersdorf,  Abr.  55 ;  Story  on  Bailm.  $  599  ; 
Wayde  v.  Carr,  2  Dow.  &  Ry.  R.  25. 

2  Pluckwell  v.  Wilson,  5  C.  &  Payne,  R.  375. 

3  Wayde  v.  Carr,  2  Dow.  &  Ry.  R.  255.     A   person  on  the  regular 
side  of  the  road  may  be  guilty  of  negligence.     M'Lane  0.  Sharpe,  2 
Harring.  (Del.)  R. 


532  LAW    OF   CARRIERS.  [cH.  XI. 

the  defendant's  servant.  They  had  acquitted  him  of  negli- 
gence ;  and  having  all  the  circumstances  of  the  case  before 
them,  had  found  their  verdict  for  the  defendant." 

§  550.  There  may  be  occasions  upon  which  it  becomes 
the  duty  of  the  driver  to  deviate,  to  a  reasonable  extent, 
from  the  proper  side  of  the  road.1  Thus,  if  a  coachman  is 
on  the  proper  side,  and  sees  a  horse  coming  furiously  along 
on  the  wrong  side,  it  is  the  duty  of  the  coachman  to  give 
way  and  avoid  an  accident ;  although,  in  so  doing,  he  goes  a 
little  on  what  would  otherwise  be  his  wrong  side  of  the  road.2 

§  551.  If  a  coachman  deviates  even  from  the  limits  of  the 
road,  and  thereby  the  coach  is  upset,  the  proprietors  of  the 
coach  will  not  be  liable  for  any  damage  thereby  occasioned, 
if  it  appears  that  such  deviation  from  his  duty  to  keep  the 
road,  was  not  owing  to  any  want  of  that  skill  and  diligence 
which  the  law  requires  in  him,  but  is  altogether  imputable  to 
an  unavoidable  mistake,  or  sudden  alteration  of  the  guiding 
objects  on  the  road.3 

§  552.  If  the  street  or  road  is  very  broad,  the  driver  is  not 
bound  to  observe  the  proper  side  of  the  road.  In  Words- 
worth v.  Willan,4  which  was  an  action  on  the  case  against 
the 'defendants,  proprietors  of  a  stage-coach,  for  the  negli- 
gence of  their  servant  in  driving  so  near  the  path  on  the 
wrong  side  of  the  road,  that  the  plaintiff's  horse,  becoming 
frightened,  and  plunging,  came  in  contact  with  the  coach  and 
broke  his  leg  ;  it  was  said  by  Rook,  J.,  that  it  could  not  be 
laid  down  as  a  certain  rule,  nor  did  public  convenience 
require,  that  the  driver  is,  under  all  circumstances,  bound  to 

1  Ibid. 

2  Turley  v.  Thomas,  8  C.  &  Payne,  R.  103.     The  rules  of  the  road, 
in  England,  are  equally  applicable  to  cases  of  persons  on  horseback,  as 
•well  as  to  persons  driving  carriages.     Ibid. 

3  Story  on  Bailm.  $  599  ;  Crofts  v.  Waterhouse,  3  Bing.  R.  321. 

4  Wordsworth  v.  Willan,  4  Esp.  R.  273. 


CH.  XT.]  PASSENGER  CARRIERS — PROPER  SIDE  OF  THE  ROAD.   533 

keep  on  what  is  considered  the  proper  side  of  the  road  ;  and 
that  if  there  was  no  interruption  of  any  other  carriage,'  or 
the  road  was  belter,  public  convenience  did  not  require  that 
the  driver  should  adhere  to  that  law  of  the  road.  He  took 
the  rule  to  be,  that  if  a  carriage  coming  in  any  direction 
left  sufficient  room  for  any  other  carriage,  horse,  or  pas- 
senger, on  its  proper  side  of  the  way,  it  was  sufficient ;  but 
that  it  was  evidence  for  the  jury  if  the  accident  arose  from 
want  of  that  sufficient  room  ;  the  driver  was  not  to  make 
experiments. 

§  553.  If  there  is  no  other  carriage  to  intercept  the  driver, 
he  may  pass  on  what  part  of  the  road  he  may  think  most 
convenient.  It  appeared  in  evidence,  in  Aston  v.  Heaven,1 
that  the  accident  for  which  the  action  was  brought  arose  from 
the  horses  having  taken  fright,  and  that  no  fault  was  imputa- 
ble  to  the  driver.  It  was  held,  that  the  owners  were  not 
liable  in  damages  to  the  plaintiff,  although  it  was  proved  that 
the  carriage  was  driving  in  the  middle  of  the  road ;  whereas, 
had  he  been  driving  on  the  proper  side,  the  accident  might 
not  have  happened,  on  account  of  the  great  distance  from 
that  side  where  the  bank  was  which  occasioned  the  accident ; 
Eyre,  C.  J.,  observing,  that  when  there  is  no  other  carriage 
to  intercept  the  driver,  he  may  go  on  what  part  of  the  road 
he  thinks  fit. 

§  554.  In  Mahew  v.  Boyce,2  the  plaintiff  was  a  passenger 
by  a  coach  which  was  overturned  in  consequence  of  its 
coming  in  contact  with  the  vehicle  of  the  defendant,  under 
the  following  circumstances :  The  coaches  were  both  directed 
to  the  same  place.  The  driver  of  the  latter,  during  the  night, 
attempted  to  pass  the  other  coach  at  the  top  of  a  hill,  and 
just  as  it  was  about  to  turn  an  angle  in  the  road  to  the  left. 
It  was,  however,  contended,  on  the  part  of  the  defendant, 
that  at  that  period  his  coach  had  sufficient  room  left  to  pass 


1  Aston  v.  Heaven,  2  Esp.  R.  533. 
8  Mahew  v.  Boyce,  1  Stark.  R.  423. 
45* 


534  LAW   OF   CARRIERS.  [CH.  XI. 

that  on  which  the  plaintiff  was  travelling,  there  being  a  space 
of  seventeen  feet  wide  to  the  right  of  the  latter  ;  and  that  the 
accident  would  not  have  occurred  had  it  not  been  occasioned 
by  the  fact  of  the  leading  horses  attached  to  the  latter  having 
been  driven  in  an  oblique  direction  from  the  left  to  the  right 
side  of  the  road.  But  it  appearing  that  the  situation  of  the 
coach,  by  which  the  plaintiff  was  a  passenger,  had  been  seen 
some  time  before  the  defendant's  coach  came  up,  and  that 
the  driver  of  the  latter  might,  by  having  driven  nearer  to  the 
right  side  than  he  did,  have  effectually  guarded  against  the 
mischief,  —  Lord  Ellenborough  said:  "This  is  decisive  of 
the  case  ;  if  it  be  practicable  to  pursue  a  course  which  is 
safe,  and  you  follow  so  closely  upon  the  track  of  another 
that  mischief  may  ensue,  you  are  bound  to  adopt  the  safe 
course.  The  coach  on  which  the  plaintiff  was  seated  had 
at  the  time  the  whole  free  range  of  the  road,  and  the  driver 
had  a  right  to  occupy  any  part  of  it,  unless  he  was  aware  of 
the  proximity  of  the  defendant's  coach.  This  accident  oc- 
curred in  the  night-time.  Risk  might  consequently  have 
been  doubly  apprehended.  The  driver  of  the  coach  belong- 
ing to  the  defendant  ought  therefore  to  have  calculated  upon 
the  exercise  of  the  other's  right  to  traverse  the  whole  space 
of  the  road,  and  have  kept  nearer  the  right  side  than  he  did, 
by  which  means  this  suit  might  never  have  been  instituted." 
The  verdict  was  for  the  plaintiff. 

§  555.  In  cases  where  parties  meet  on  the  sudden,  and  an 
injury  results,  the  party  on  the  wrong  side  of  the  road  should 
be  held  answerable,  unless  it  clearly  appears  that  the  party 
on  the  proper  side  had  ample  means  and  opportunities  to 
prevent  it.  A  man,  says  Chief  Justice  Best,  "  may  not  on 
a  sudden,  be  sufficiently  self-possessed  to  know  .in  what  way 
to  decide  ;  and  in  such  case  the  wrong-doer  is  the  party  who 
is  to  be  answerable  for  the  mischief;  though  it  might  have 
been  prevented  by  the  other  party's  acting  differently."  1 


1  Chaplin  v.  Hawes,  3  C.  &  Payne,  R.  554. 


CH.  XI.]  PASSENGER   CARRIERS  —  COLLISION. 


535 


§  556.  Whenever  a  collision  of  two  carriages  occurs,  the 
driver,  by  whose  negligence  or  misconduct  it  occurred,  must 
of  course  be  responsible  for  the  consequences.  But  the  rule 
in  all  cases,  where  an  action  is  brought  for  damage  so  occa- 
sioned, is,  that  if  it  appears  that  the  damage  was  occasioned 
partly  by  the  negligence  of  the  plaintiff,  and  partly  by  that 
of  the  defendant,  the  action  cannot  be  maintained  ;  and  if 
the  plaintiff's  negligence  in  any  way  concurred  in  causing  the 
damage,  he  is  not  entitled  to  recover.1  As  was  said  by  Lord 
Elleuborough,  "  a  party  is  not  to  cast  himself  upon  an  ob- 
struction which  has  been  made  by  the  fault  of  another,  and 
avail  himself  of  it,  if  he  do  not  himself  use  common  and 
ordinary  caution  to  be  in  the  right.  In  cases,"  the  learned 
Judge  continued  to  say,  "  of  persons  riding  upon  what  is 
considered  the  wrong  side  of  the  road,  that  would  not  author- 
ize another  purposely  to  ride  up  against  them  ;  for  one  per- 
son being  in  default  will  not  dispense  with  another's  using 
ordinary  care  for  himself."  2  The  rule  of  law  thus  laid  down 
was  declared  by  Parke,  B.,  in  the  case  of  the  Grand  Junction 
Railway  Company,  to  be  "  perfectly  correct."  This  case 
was  an  action  for  the  negligent  management  of  a  train  of 
railroad  cars,  whereby  it  ran  against  another  train,  in  one  of 
which  the  plaintiff  was  riding,  and  whereby  he  was  injured. 
It  was  pleaded,  that  the  parties  having  the  management  of 


1  Pluckwell  v.  Wilson,  5  C.  &  Payne,  R.  375  ;  Williams  v.  Holland,  6 
Ib.  23  ;  Monroe  ».  Leach,  7  Met.  (Mass.)  R.  274  ;  Churchill  v.  Rosebeck, 
15  Conn.  R.  359  ;  Simpson  v.  Hand,  6  Whart.  (Penn.)  R.  311  ;   Rathbun 
v.  Payne,  19  Wend.  (N.  Y.)  R.  399  ;  Barnes  v.  Cole,  21  Jb.  188;  Hart- 
field  v.  Rover,  Ib.  615;  Brownell  v.  Flakier,  5  Hill,  (N.  Y.)  R.  282. 
The  rule  is   the   same   in   respect  to  carriers  by  water.     Vandeplank  v, 
Miller,  1  Moo.  &  Malk.  R.  169;  Luxford  v.  Large,  5  C.  &  Payne,  R. 
421  ;  Sills  v.  Brown,  9  Ib.  601  ;  and  see  ante,  $  167,  note  2  ;  and  post, 
Chap.  XII.  $  634,  et  seq. 

2  Butterfield  v.  Forrester,  11  East,  R.  60.     In  this  case  it  was  held, 
that  one  who  is  injured  by  an  obstruction  in  a  highway  against  which  he 
fell,  cannot  maintain  an  action,  if  it  appear  that  he  was  riding  with  great 
violence  and  want  of  ordinary  care,  without  which  he  might  have  seen  and 
avoided  the  obstruction. 


536  LAW   OF  CARRIERS.  [CH.  XI. 

the  train  in  which  the  defendant  was,  managed  it  so  negli- 
gently and  improperly,  that  in  part  by  their  negligence,  the 
defendant's  train  ran  against  the  other,  and  caused  the  inju- 
ries which  the  plaintiff  received.  It  was  held,  that  the  plea 
was  bad  in  form,  as  amounting  to  "  not  guilty ;  "  and  also 
bad  in  substance,  for  not  showing,  not  only  that  the  parties 
under  whose  management  the  plaintiff  was  were  guilty  of 
negligence,  but  also  that  by  ordinary  care,  they  could  have 
avoided  the  consequences  of  the  defendant's  negligence.1 

§  557.  The  important  doctrine  laid  down  in  the  preceding 
ction,  has  been  repeatedly  recognized  and  applied  in  this 


section 


1  Bridge  v.  Grand  Junction  Railway  Co.  3  M.  &  Welsh.  R.  244.  In 
case,  for  driving  a  coach  of  the  defendant  against  the  plaintiff's  carriage, 
in  which  were  two  of  his  sons,  and  injured  it  and  them  ;  it  was  pleaded, 
that  the  plaintiff's  carriage  was  under  the  guidance  and  direction  of  one 
of  his  sons,  who  was  driving  it,  and  that  the  defendant,  by  his  servant, 
was  carefully  and  properly  driving  his  coach  ;  that  if  the  plaintiff's  son 
had  driven  his  carriage  carefully  and  properly,  no  collision  wouhl  have 
taken  place,  nor  any  injury  have  been  occasioned  to  the  plaintiff's  carriage 
or  to  his  sons  ;  but  that  the  plaintiff's  son  drove  the  carriage  so  negligently 
and  improperly,  that  it  ran  and  struck  against  the  defendant's  coach,  and 
by  means  thereof,  and  without  any  carelessness  or  improper  conduct 
of  the  defendant  by  his  servant,  the  defendant's  coach  ran  and  struck 
against  the  plaintiff's  carriage,  whereby  the  supposed  damages  in  the 
declaration  mentioned  were  occasioned  :  so  that  if  any  damage  was  occa- 
sioned to  the  plaintiff's  carriage  or  to  his  sons,  it  was  occasioned  by  the 
carelessness  and  negligence  of  the  plaintiff's  son  so  driving  his  carriage  ; 
without  this,  that  the  defendant,  by  his  servant,  so  carelessly  and  impro- 
perly drove  his  coach,  that  by  and  through  his  carelessness  and  improper 
conduct  in  that  behalf,  the  defendant's  coach  struck  against  the  plaintiff's 
carriage,  in  manner  and  form,  &c.  ;  concluding  to  the  country.  The  plea 
was  held  bad  on  special  demurrer.  Lord  Abinger,  C.  B.,  said  :  "  I  am  of 
opinion  that  this  plea  is  bad.  The  principal  ground  on  which  a  special 
plea  amounting  to  the  general  issue  has  been  held  bad  on  special  de- 
murrer, is,  that  it  contains  superfluous  and  unnecessary  matter.  As  this 
plea  concludes  to  the  country,  this  forms  the  only  objection  to  it ;  if  it 
had  concluded  with  a  verification,  it  would  have  been  more  vicious,  be- 
cause it  would  drive  the  plaintiff,  in  his  replication,  to  select  some  par- 
ticular fact  to  take  issue  upon."  Gough  v.  Bryan,  2  M.  &  Welsh.  R.  770. 


CH.  XI.]  PASSENGER   CARRIERS  —  COLLISION.  537 

country.1  In  Smith  v.  Smith,  in  Massachusetts,2  the  action 
was  an  action  on  the  case  for  an  injury  done  to  the  plaintiff's 
horse  by  a  wood-pile,  which  the  defendant  had  placed  in  the 
highway  ;  and  it  was  held,  that,  as  the  plaintiff  did  not  use 
ordinary  care,  by  which  the  obstruction  might  have  been 
avoided,  he  could  not  maintain  the  action.  The  defendant 
contended,  that  the  plaintiff  did  not  use  ordinary  care,  that 
the  wagon  in  which  he  was  driving  in  descending  the  hill  on 
which  the  accident  happened,  was  overloaded  ;  that  he  did 
not  drive  skilfully,  and  that  he  did  not  put  a  shaft  girth  on. 
Parker,  C.  J.,  in  giving  the  opinion  of  the  Court,  said :  "  It 
would  seem,  at  first,  that  he  who  does  an  unlawful  act,  such 
as  incumbering  the  highway,  should  be  answerable  for  any 
direct  damages  which  happen  to  any  one  who  is  injured, 
whether  the  party  suffering  was  careful  or  not  in  his  manner 
of  driving  or  in  guiding  his  vehicle,  for  it  could  not  be  ren- 
dered certain,  whether,  if  the  road  were  left  free  and  unin- 
cumbered,  even  a  careless  traveller  or  a  team  driver  would 
meet  with  any  injury.  But  on  deliberation  we  have  corne  to 
the  conclusion,  that  this  action  cannot  be  maintained,  unless 
the  plaintiff  can  show' that  he  used  ordinary  care  ;  for  without 

1  See  ante,  n.  1  to  preceding  section ;    Brownell  v.  Flaggler,  5  Hill, 
(N.  Y.)  R.  282,  and  the  cases  there  cited  ;  Harlow  v.  Humision,  6  Cow. 
(N.  Y.)   R.   191  ;  Noyes  v.  Morris,  1  Verm.  R.  353  ;    Burckle  v.  New 
York  Dry  Dock  Company,  2  Hall,  (N.  Y.)  R.  151 ;  Lane  u.  Crombie,  12 
Pick.  (Mass.)  R.  176  ;  Monroe  v.  Leack,  7  Met.  (Mass.)  R.  274  ;  Parker 
v.  Adams,  12  Met.  (Mass.)  R.  415  ;  Beers  v.  Housatonic  Railroad  Co.  19 
Conn.  R.  566.     The  case  of  Butterfield  v.  Forrester,  (ante,  §  556,)  was 
cited  and  relied  on  by  the  Court  of  Appeals  of  South  Carolina,  in  a  case 
in  which  the  judgment  of  the  Court  was,  —  that  where  a  slave  of  the 
plaintiff,  endowed  with  ordinary  intelligence,  and  acquainted  with  the 
nature  and  manner  of  using  a  railroad,  voluntarily  laid  himself  down  on 
the  road  and  went  to  sleep,  amidst  grass  so  high  as  to  obstruct  the  view  at 
some  distance,  and  in  this  situation,  without  any  fault  of  the  engineer,  the 
engine  going  at  its  ordinary  speed,  passed  over  the  body  and  killed  the 
slave,  the  plaintiff  could  not  recover  against  the  company  for  the  value  of 
the  slave  killed.     Felder  v.  Cincinnati  and  Charleston   Railroad  Co.  2 
M'Mull.  (S.  C.)  R.  404. 

2  Smith  v.  Smith,  2  Pick.  (Mass.)  R.  621. 


538  LAW   OF   CARRIERS.  [CH.  XI. 

that,  it  is  by  no  means  certain  that  he  himself  was  not  the 
cause  of  his  own  injury.  The  party  who  obstructs  a  high- 
way is  amenable  to  the  public  in  indictment,  whether  any 
person  be  injured  or  not,  but  not  to  an  individual,  unless 
it  be  shown  that  he  suffered  in  his  person  or  property  by 
means  of  the  obstruction  ;  and  where  he  has  been  careless, 
it  cannot  be  known  whether  the  injury  is  wholly  imputable 
to  the  obstruction,  or  the  negligence  of  the  party  complain- 
ing. And,  considering  the  indulgence  shown  by  the  public 
to  the  citizens,  in  many  places,  to  occupy  a  part  of  the  high- 
way for  temporary  purposes,  leaving  ample  room  for  travel- 
lers with  ordinary  care  to  pass  uninjured,  the  principle  which 
requires  that  degree  of  care  in  order  to  entitle  a  party  to 
damages,  may  be  deemed  salutary  and  useful.  That  such  is 
the  law,  we  are  fully  satisfied  from  an  examination  of  the 
authorities  cited."  l 

§  558.  Where  a  person  travelling  with  a  horse  and  wagon 
might,  from  an  eminence  in  the  road,  have  seen  that  a  cause- 
way at  a  considerable  distance,  which  he  intended  to  pass 
over,  was  covered  with  water,  but  when  he  descended  the 
hill  the  causeway  was  out  of  sight  until  he  had  proceeded 
too  far  either  to  turn  back  or  to  go  on  with  safely,  it  was 
held,  that  hitherto  he  was  not  guilty  of  negligence  ;  and,  as 
he  then  used  ordinary  care  in  endeavoring  to  extricate  his 
horse  from  the  danger,  but  without  success,  he  was  held 
entitled  to  recover  for  the  loss  of  the  horse,  which  was 
drowned.  The  jury,  in  this  case,  were  satisfied  from  the 
evidence,  that  the  loss  of  the  horse  was  owing  to  the  defect 
in  the  causeway,  and  that  no  mismanagement  or  negligence 
on  the  part  of  the  plaintiff  concurred  in  the  loss.2 

§  559.  It  is  obvious,  that  cases  of  alleged  mutual  neglect, 


1  The  learned  Judge  laid  much  stress  upon  the  decision  in  Butterfield 
v.  Forrester,  11  East,  R.  60,  and  cited  in  the  preceding  section. 

2  Thompson  v.  Bridgewater,  7  Pick.  R.  188. 


CH.  XI.]  PASSENGER    CARRIERS  —  COLLISION. 


539 


like  those  above-mentioned,  must  be  determined  by  the  jury. 
In  an  action  by  the  owner  of  a  coach  and  horses  against  the 
driver  of  another  coach,  for  driving  the  wheels  of  his  coach 
upon  one  of  the  horses  attached  to  the  plaintiff's  coach  ;  it 
was  contended  for  the  defendant,  that,  according  to  the  evi- 
dence, the  action  could  not  be  maintained  as  the  driver  of 
the  plaintiff's  coach  was  himself  in  fault,  as  he  and  the 
defendant  were  mutually  running  and  cutting  each  off,  to 
prevent  each  other  going  ahead.  The  Court  sustained  this 
objection,  and  instructed  the  jury,  that  as  the  plaintiff's 
driver  was  in  fault,  in  the  manner  stated  by  the  defendant's 
counsel,  the  action  could  not  be  sustained,  and  directed  them 
to  give  a  verdict  for  the  defendant ;  which  they  did.  To 
these  instructions  of  the  Court,  the  plaintiff  alleged  excep- 
tions, and  a  new  trial  was  granted,  because  the  direction  of 
the  Court  to  the  jury  assumed  a  fact  as  proved,  which  should 
have  been  left  to  them  on  the  evidence.  The  view  of  the 
case  taken  by  Wilde,  J.,  in  giving  the  opinion  of  the  Court, 
was  thus  :  —  "  We  are  of  opinion,  that  the  fault  of  the  plain- 
tiff's driver  was  not  satisfactorily  proved.  All  that  is  proved 
is,  that  he  had  been  in  fault  previously  to  the  transaction 
complained  of.  But  this  was  no  justification  for  the  defend- 
ant in  the  commission  of  the  like  fault.  And,  it  appears  by 
the  evidence  reported,  that  the  injury  complained  of  was 
solely  caused  by  the  misconduct  of  the  defendant.  He  drove 
the  plaintiff's  horses  into  a  snow  drift ;  and  it  was  testified 
by  the  witness,  that  Littlefield,  the  plaintiff's  driver,  tried  to 
avoid  him  all  he  could."  l  This  case,  therefore,  establishes 
the  point,  that  evidence  that  the  drivers  of  two  coaches  on 
the  same  route  mutually  attempted  several  times  to  intercept 
each  other's  progress,  by  "  cutting  each  other  off,"  is  not 
sufficient  to  prove  that,  in  a  subsequent  collision  on  the  same 
trip,  they  were  both  in  fault. 

§  560.  In  an  action  for  injuries  sustained  by  a  collision, 
1  Monroe  v.  Leach,  7  Met.  (Mass.)  R.  274. 


540  LAW   OF   CARRIERS.  [cH.  XI. 

the  declaration  alleged,  that  the  defendant  drove  a  barouche 
on  the  public  highway,  against  another  barouche,  the  pro- 
perty of  the  plaintiff,  in  which  he  was  then  riding,  and 
thereby  broke  to  pieces  the  barouche  of  the  plaintiff;  by 
means  of  which  the  plaintiff  was  thrown  upon  the  ground, 
and  was  much  bruised  and  wounded.  On  the  trial,  the 
plaintiff  claimed  to  have  proved,  that  at  the  time  alleged  in 
his  declaration,  he,  with  two  females,  one  of  them  his  daugh- 
ter, was  riding  along  the  public  highway  in  the  town  of 
Wethersfield,  in  a  southerly  direction,  in  a  barouche  drawn 
by  one  horse,  which  was  driven  by  the  plaintiff;  that  the 
defendant,  riding  with  one  female,  upon  the  same  highway, 
in  the  same  direction,  in  a  wagon  drawn  by  one  horse,  and 
driven  by  the  defendant,  overtook  the  plaintiff's  barouche 
near  a  brick  school-house,  about  one  quarter  of  a  mile  from 
the  place  where  the  injury  complained  of  happened  ;  that 
when  the  defendant  so  overtook  the  plaintiff,  the  plaintiff,  for 
the  purpose  of  increasing  the  speed  of  his  horse,  and  keep- 
ing out  of  the  defendant's  way,  either  struck,  or  snapped  his 
whip  at,  his,  the  plaintiff's  horse,  in  consequence  of  which  it 
moved  forward  more  rapidly  than  before  ;  that  the  defendant 
applied  his  whip  to  his,  the  defendant's  horse,  in  repeated 
instances,  and  thereby  greatly  increased  its  speed,  and  the 
defendant  several  times  attempted  to  pass  by  the  plaintiff, 
but  as  the  defendant's  horse  approached  the  plaintiff's,  mov- 
ing with  much  rapidity,  the  plaintiff's  horse  became  excited, 
and  the  plaintiff  could  not  hold  it  in,  and  both  moved  for- 
ward at  a  very  rapid  rate,  the  defendant  urging  on  his  horse 
with  repeated  strokes  of  the  whip,  the  defendant's  horse  being 
sometimes  directly  behind,  and  at  others  by  the  side  of  the 
plaintiff's  barouche,  the  plaintiff's  horse  being  at  all  times  in 
advance  of  the  defendant's,  until  the  injury  complained  of 
happened  ;  that  as  soon  as  the  plaintiff  was  able  so  to  do,  he 
turned  his  horse  and  barouche  aside,  so  as  to  give  the  defend- 
ant an  opportunity  of  passing  the  plaintiff,  without  doing  him 
or  his  property  any  injury,  and,  at  the  time  when  the  injury 
happened,  had  so  far  turned  out  of  the  highway  as  to  leave 


CH.  XI.]  PASSENGER   CARRIERS  —  COLLISION.  *541 

the  whole,  or  nearly  the  whole,  of  the  travelled  path  to  the 
defendant,  and  to  afford  the  defendant  every  opportunity  and 
facility  which  was  necessary  or  desirable  to  pass  by  the  plain- 
tiff's barouche  and  horse,  without  in  any  way  coming  into 
collision  with  either ;  and  that  the  defendant  might  have  so 
done,  if  he  chose  ;  but  that  the  defendant,  without  any  ne- 
cessity whatever,  at  the  place  where  said  injury  happened, 
drove  his  wagon  against  the  plaintiff's,  and  thereby  overset 
the  same,  and  caused  the  injury  complained  of.  The  defend- 
ant offered  evidence  to  prove,  and  claimed  that  he  had  proved, 
that  he  lived  in  the  city  of  Hartford,  and  was  riding  in  said 
wagon  driven  by  him,  being  a  light  wagon,  late  in  the  after- 
noon of  the  day  on  which  the  injury  complained  of  happened, 
to  the  south  part  of  Wethersfield,  with  an  intention  of  return- 
ing home  the  same  day ;  that  he  passed  the  plaintiff,  who 
was  riding  in  the  same  direction,  in  his  barouche,  which  was 
a  heavy  barouche,  and  heavier  than  the  wagon  of  the  defend- 
ant, near  the  said  brick  school-house  ;  that  he,  the  defendant, 
then  passed  the  plaintiff,  whereupon  the  plaintiff  whipped  up 
his  horse,  put  him  to  great  speed,  and  passed  the  defendant; 
that  the  plaintiff  kept  his  horse  and  barouche  before  the 
defendant,  turning  to  the  right  and  left  before  him,  as  he 
turned  to  the  right  and  left  to  pass  on,  thus  keeping  the 
defendant  back  for  a  considerable  distance,  and  hindering 
him  in  his  progress  ;  that  the  defendant,  for  the  purpose  of 
passing  the  plaintiff,  left  the  travelled  path,  and  turned  across 
a  gutter,  by  the  side  thereof,  into  the  side  of  the  highway  ; 
that  the  plaintiff  entered  into  a  race  with  the  defendant ; 
that  the  plaintiff  and  defendant  came  together  side  by  side, 
in  a  short  time,  upon  a  certain  stone  bridge,  when  the  de- 
fendant passed  the  plaintiff,  on  his  right,  both  continuing  to 
drive  with  great  speed,  until  at  the  distance  of  about  twelve 
rods  from  said  bridge,  the  plaintiff's  left  trace  broke,  and 
also  the  left  shart  of  his  barouche,  and  his  said  barouche  then 
upset,  in  consequence  of  running  off  from  the  travelled  path 
into  the  gutter  by  the  side  thereof,  and  threw  out  the  plain- 
tiff; and  that  in  that  mode  the  injury  sustained  by  the  plain- 
46 


542  LAW    OF   CARRIERS.  [CH.  XI. 

tiff  was  caused  :  all  which  was  denied  by  the  plaintiff.  The 
defendant  claimed  from  the  testimony,  that  the  plaintiff  had 
not  proved,  that  the  defendant  did  drive  his  wagon  against 
the  plaintiff's  barouche,  or  cause  it  in  any  wise  to  come  in 
collision  therewith,  or  occasion  the  injury  complained  of; 
and  if  so,  that  the  plaintiff  was  not  entitled  to  recover.  And 
the  defendant  also  claimed,  that  if  he,  the  defendant,  through 
negligence,  had  driven  his  said  wagon  against  the  plaintiff's 
barouche,  and  thereby  overset  it,  and  caused  the  injury 
complained  of;  yet  that  the  plaintiff  was  also  guilty  of  the 
misconduct  claimed  to  have  been  proved  by  the  defendant 
concurring  to  produce  the  result,  and  was,  therefore,  not 
entitled  to  recover  for  such  injury.  The  plaintiff  claimed, 
that  he  had  been  guilty  of  no  negligence  or  misconduct  on 
his  part,  and  that  said  injury  happened  entirely  through  the 
negligence  or  misconduct  of  the  defendant ;  and  that  if  the 
plaintiff  had  been  guilty  of  negligence  on  his  part,  the  de- 
fendant drove  his  wagon  against  the  plaintiff's  barouche,  and 
overset  it,  and  caused  the  injury  complained  of,  intentionally  ; 
and  if  not  intentionally,  through  gross  negligence  on  the  part 
of  the  defendant ;  all  of  which  the  defendant  denied  ;  and 
the  plaintiff  claimed,  that  in  either  of  these  events  or  cases, 
he  was  entitled  to  recover.  And  the  parties  respectively 
requested  the  Court  to  charge  the  jury  in  conformity  with 
their  several  claims.  The  Court  charged  the  jury,  that  if 
the  defendant  did  not  drive  his  wagon  against  the  plaintiff's 
barouche,  and  thereby  cause  the  injury  complained  of,  the 
plaintiff  was  not  entitled  to  recover  in  this  suit ;  but  that  if 
the  defendant,  either  intentionally,  or  through  gross  negli- 
gence on  his  part,  drove  his  wagon  against  the  plaintiff's 
barouche,  and  thereby  overset  it,  and  caused  the  injury  com- 
plained of,  the  plaintiff  was  entitled  to  recover  ;  and  that  if 
neither  of  these  was  the  case,  but  the  defendant  was  guilty 
of  a  want  of  ordinary  and  reasonable  care  and  prudence, 
and  thereby  drove  his  wagon  against  said  barouche,  and 
overset  it,  and  caused  the  injury  complained  of,  the  plaintiff 
was  entitled  to  recover,  unless  there  was  also  fault  or  negli- 


CH.  XI.]  PASSENGER   CARRIERS — COLLISION.  543 

gence  on  his  part,  which  concurred  in  producing  the  injury  ; 
but  if  the  plaintiff,  on  his  part,  was  guilty  of  any  fault  or 
negligence,  and  such  fault  or  negligence  concurred  in  pro- 
ducing the  injury,  he  was  not  entitled  to  recover.  The  jury 
returned  a  verdict  for  the  plaintiff,  and  a  motion  for  a  new 
trial,  on  the  ground  of  a  misdirection,  was  denied.  Storrs, 
J.,  who  gave  the  opinion  of  the  Court,  said  :  — "  The  plain- 
tiff claimed,  that  the  injury  occurred  entirely  through  the 
negligence  of  the  defendant,  without  any  negligence  on  his 
part ;  and  also,  that,  if  the  plaintiff  was  guilty  of  negligence, 
the  defendant  drove  his  carriage  against  the  plaintiff's,  by 
design  or  gross  negligence,  and  thereby  caused  the  injury  ; 
and  that  in  either  of  these  events,  the  plaintiff  was  entitled 
to  recover.  This  claim  as  to  the  effect  of  negligence  on  the 
part  of  the  plaintiff,  was  evidently  intended  merely  to  meet 
an  anticipated  claim,  by  the  defendant,  of  such  negligence  ; 
but  as  such  a  claim  was  not  made  by  the  defendant,  it  was 
unnecessary  to  notice  it  in  the  charge  ;  and  that  part  of  the 
charge  which  was  predicated  on  the  supposition  that  there 
was  concurring  fault  or  negligence  in  the  plaintiff,  might 
properly  have  been  omitted,  either  as  applicable  to  gross 
negligence,  or  a  want  of  ordinary  or  reasonable  care  and 
prudence  on  the  part  of  the  plaintiff.  The  omission  of  the 
Court  to  qualify  the  effect  of  negligence  on  the  part  of  the 
defendant,  by  stating  the  effect  of  negligence  in  the  plaintiff, 
could  not  have  injured  the  defendant,  since  the  facts  as 
claimed  by  him  to  be  proved,  called  for  no  such  qualification. 
The  charge,  therefore,  as  applicable  to  the  case,  was  unexcep- 
tionable. Whether,  or  under  what  circumstances,  the  gross 
negligence  of  the  defendant  would  be  excused,  by  concurring 
negligence  on  the  part  of  the  plaintiff,  in  cases  of  injuries 
occasioned  by  collision,  it  is  unnecessary  in  this  case  to  con- 
sider ;  and  on  a  subject  where  it  is  so  difficult  to  lay  down 
general  principles  without  qualification,  and  where  it  would 
be  hazardous  to  attempt  to  point  out  with  precision  all  those 
qualifications,  we  do  not  wish  to  be  understood  as  expressing 
any  opinion  not  required  by  the  case  before  us." 


544  LAW   OF   CARRIERS.  [cH.  XT. 

§  561.  The  general  rule  of  law  in  respect  to  negligence 
is,  that  although  there  may  have  been  negligence  on  the  part 
of  the  plaintiff,  yet  unless  he  might  by  the  exercise  of  ordi- 
nary care  have  avoided  the  consequence  of  the  defendant's 
negligence,  he  is  entitled  to  recover.  Therefore,  where  the 
defendant  negligently  drove  his  horses  and  wagon  against 
and  killed  an  ass,  which  had  been  left  in  the  highway  fettered 
in  the  forefeet,  and  thus  unable  to  get  out  of  the  way  of  the 
defendant's  wagon,  which  was  going  at  an  immoderate  pace 
along  the  road  ;  it  was  held,  that  the  jury  were  properly 
directed,  that  although  it  was  an  illegal  act  on  the  part  of  the 
plaintiff  so  to  put  the  animal  on  the  highway,  the  plaintiff 
•was  entitled  to  recover.  For,  as  the  defendant,  said  Lord 
Abinger,  might,  by  proper  care,  have  avoided  injuring  the 
animal,  and  did  not,  he  is  liable  for  the  consequences  of  his 
negligence,  though  the  animal  may  have  been  improperly 
there.  Although,  said  Parke,  B.,  the  ass  may  have  been 
wrongfully  there,  still  the  defendant  was  bound  to  go  along 
the  road  at  such  a  pace  as  would  be  likely  to  prevent  mis- 
chief; and  were  this  not  so,  a  man  might  justify  the  driving 
over  goods  left  on  a  public  highway,  or  even  of  a  man  lying 
asleep  there,  or  the  purposely  running  against  a  carriage 
going  on  the  wrong  side  of  the  road.1  And,  therefore,  a 

1  Davies  v.  Mann,  10  M.  &  Welsh.  R.  545.  In  Brownell  v,  Flaggler, 
5  Hill,  (N.  Y.)  R.  282,  it  was  held,  that  where  there  had  been  mutual 
neglect,  the  plaintiff  might  recover  in  an  action  on  the  case,  if  the  evi- 
dence showed  intentional  wrong  on  the  part  of  the  defendant.  The  above 
case  of  Davies  v.  Mann  was  cited  by  Lord  Denman,  C.  J.,  in  a  case  in 
which  it  was  held,  that,  if  property,  (as  oysters)  be  placed  in  the  channel 
of  a  public  navigable  river,  so  as  to  amount  to  a  public  nuisance,  a  person 
navigating  is  not  justified  in  damaging  such  property  by  running  his  vessel 
against  it,  if  he  has  room  to  pass  without  so  doing ;  for  an  individual  can- 
not abate  a  public  nuisance  if  he  is  not  otherwise  injured  by  it  than  as  one 
of  the  public  ;  and,  therefore,  the  fact,  that  such  property  was  a  nuisance 
is  no  excuse  for  running  upon  it  negligently.  And,  the  learned  Judge 
said,  that  "  as  a  general  rule  of  law,  every  one,  in  the  conduct  of  that 
which  may  be  harmful  to  others  if  misconducted,  is  bound  to  the  use  of 
due  care  and  skill ;  and  the  wrong  doer  is  not  without  the  pale  of  the 
law  for  this  purpose."  May.  of  Colchester  v.  Brooke,  7  Ad.  &  Ell.  R. 
(N.  S.)  339. 


CH.  XI.]  INJURY   TO   FOOT-PASSENGERS.  545 

passenger  in  a  public  conveyance  who  has  been  injured  by 
the  negligent  management  of  another  conveyance,  cannot 
maintain  an  action  against  the  owner  of  the  latter,  if  the 
driver  of  the  former,  by  the  exercise  of  proper  care  and  skill, 
might  have  avoided  the  accident  which  caused  the  injury.1 

§  562.  The  doctrine,  that  a  plaintiff  who  has  contributed 
to  an  injury  occasioned  by  the  negligence  of  the  defendant, 
cannot  recover  a  compensation  in  damages,  does  not  apply 
where  the  plaintiff  is  a  person  incapable  of  exercising  ordi- 
nary care  and  caution.  Where,  therefore,  the  defendant's 
servant  left  a  horse  and  cart  unattended  in  a  public  street, 
and  the  plaintiff,  a  child  under  seven  years  of  age,  during 
the  driver's  absence,  climbed  on  the  wheel,  and  other  children 
urged  forward  the  horse,  whereby  the  plaintiff  was  thrown 
to  the  ground  and  the  wheel  fractured  his  leg  ;  it  was  held, 
that,  on  these  facts,  the  jury  were  justified  in  finding  a  ver- 
dict for  the  plaintiff,  if  they  were  of  opinion  that  there  was 
negligence  on  the  part  of  his  servant.  And  it  was  also 
held,  that  the  cooperation  of  third  parties  to  the  injury  was 
not  a  ground  of  defence,  if  the  means  of  injury  were  negli- 
gently left  where  it  was  extremely  probable  that  they  would 
be  set  in  motion.2 

§  563.  (8.)  Their  Duty  to  avoid  Injury  to  Foot- Passengers,] 
All  persons  have  a  right  to  walk  in  a  public  highway,  if  they 
observe  reasonable  care  to  avoid  carriages ;  and  they  are 
entitled  to  the  exercise  of  reasonable  care  on  the  part  of  per- 
sons driving  carriages  along  it.  Thus,  in  an  action  of  trespass 
for  injuring  the  plaintiff  by  driving  a  cart  against  him,  it  ap- 
peared that  the  plaintiff  was  walking  in  the  carriage  way  in 
the  neighborhood  of  London  about  ten  o'clock  in  the  evening, 


1  Thoroughgood  v.  Bryan,  18  Law  Journ.  336,  and  reported  in  Law 
Rep.  (Boston)  for  July,  1850,  p.  156. 

2  Lynch  v.  Nurdin,   4  Per.  &  Dav.  R.  672,  and  1  Adol.  &  Ell.  R. 
(N.  S.)  29. 

46* 


546  LAW   OF   CARRIERS.  [cH.  X 

when  the  defendant,  who  was  driving  a  taxed  cart,  turned 
out  from  behind  a  postchaise  and  drove  against  the  plaintiff, 
and  knocked  him  down.  It  was  held,  that  the  plaintiff  was 
entitled  to  recover.  It  was,  however,  proved,  that  the  foot- 
path was  in  a  bad  state,  and  seldom  used  ;  but  Denman,  C.  J., 
observed :  —  "A  man  has  a  right  to  walk  in  the  road  if 
he  pleases.  It  is  a  way  for  foot-passengers  as  well  as  car- 
riages. But  he  had  better  not,  especially  at  night,  when  car- 
riages are  passing  along."  1  It  is  quite  clear,  at  all  events,  that 
a  foot-passenger  has  a  right  to  cross,  and  that  persons  driving 
carriages  along  the  road  are  liable  if  they  do  not  take  care 
so  as  to  avoid  driving  against  the  foot-passenger  who  is  cross- 
ing the  road.2  If  a  driver  of  a  vehicle,  therefore,  cannot  pull 
up  because  his  reins  break,  that  will  be  no  ground  of  defence, 
as  he  is  bound  to  have  proper  tackle.3  So  when  a  horse, 
being  frightened,  runs  away,  and  damage  is  done,  it  is  no 
ground  of  defence  that  the  chain-stay  of  the  cart  to  which  the 
horse  is  attached  breaks,  and  thus  frightens  the  horse.4  If  a 
horse  and  carriage  are  left  standing  in  a  street,  and  without 
any  person  to  watch  them,  the  owner  is  liable  for  any  dam- 
age done  by  them,  although  it  is  occasioned  by  the  act  of  a 
passer-by,  in  striking  the  horse  ;  for  if  a  man  chooses  to  leave 
a  horse  and  carriage  standing  in  the  street,  he  must  take  the 
risk  of  any  mischief  that  may  be  done  in  consequence.5  In 

1  Boss  v.  Litton,  5  C.  &  Payne,  R.  407. 

2  Cotterill  v.  Starkey,  8  C.  &  Payne,  R.  691  ;  and  see  Wakeman  v. 
Robinson,  1  Bing.  R.  213.     In  the  Superior  Court  of  New  York,  January 
5,  1849,  there  was  an  action  to  recover  damages  for  injuries  received  by 
the  plaintiff  by  one  of  the  defendant's  stage-coaches.     The  plaintiff,  an 
aged  lady  (upwards  of  seventy,)  while  crossing,  one  afternoon,  the  third 
avenue,  was  run  over  by  one  of  the  before-mentioned  coaches,  and  had  her 
arm  broken.     The  verdict  in  her  favor  was  for  $  1500.     Reported  for  the 
Journ.  of  Comm.  of  January  6,  1849. 

3  Cotterill  v.  Starkey,  ub.  sup. 

4  Welsh  v.  Lawrence,  2  Chitt.  R.  262  ;  and  see  Smith  v.  Smith,  2  Pick. 
(Mass.)  R.  621. 

5  Illige  v.  Goodwin,  5  C.  &  Payne,  R.  190.     In  this  case  the  plaintiff 
was  a  china-man  in  St.  Paul's  Church-yard,  London  ;  and  the  cart  of  the 


CH.  XI.]  INJURY  TO  FOOT-PASSENGERS.  547 

such  case  (and  the  horse  be  unfastened)  the  owner  of  the 
animal  is  responsible  to  any  person  who  is  injured  thereby, 
even  if  the  habits  of  the  animal  are  such  as  to  induce  the 
belief  of  safety  in  so  leaving  it ;  and  evidence  of  reason  for 
such  belief,  in  an  action  for  an  injury  sustained  in  consequence 
of  such  negligence,  if  given  in  the  cause,  must  be  disregarded 
by  the  jury.1 

§  564.  But,  according  to  the  doctrine  which  has  already 
been  laid  down,  applicable  to  collision  of  carriages,  &c.2 
whenever  an  action  is  brought  for  an  injury  to  a  person  in 
crossing  a  road  or  street  by  driving  against  him  and  by 
knocking  him  down,  the  jury  must  be  satisfied  that  the 
injury  was  attributable  to  the  negligence  of  the  driver,  and 
to  that  alone,  before  they  can  find  a  verdict  for  the  plaintiff; 
and  if  they  think  that  the  injury  was  occasioned,  in  any 
degree,  by  the  improper  conduct  of  the  plaintiff  in  crossing 
the  road  in  an  incautious  and  imprudent  manner,  the  defend- 
ant will  be  entitled  to  a  verdict.3  Thus,  if  a  person  in  a 
public  street  in  a  city,  sees  an  omnibus  coming,  however 
furiously,  and  he  will  be  reckless  and  headstrong  enough  to 
try  to  cross  the  street,  and  is  run  over,  he  cannot  recover  in 
an  action  against  the  proprietors  of  the  omnibus,  as  no  one 
has  a  right  of  action,  if  he  meets  with  an  accident  which  by 
ordinary  care  he  might  have  avoided.4 

§  565.  In  Wynn  v.  Allard,  in  Pennsylvania,5  it  appeared 
that  the  plaintiff  was  walking  in  the  middle  of  one  of  the 
most  frequented  streets  of  the  town  of  Wilkesbarre,  in  that 
State,  where  there  were  sidewalks  for  footmen,  when  the 

defendant  (a  scavenger)  backed  against  the  window  of  the  plaintiff's  shop, 
and  broke  a  quantity  of  china. 

1  Overington  v.  Dunn,  1  Miles,  (Penn.)  R.  39. 

2  See  ante,  §  556,  et  seq. 

3  Hawkins  v.  Cooper,  8  C.  &  Payne,  R.  475 ;  Wolf  v.  Beard",  Ib.  373. 

4  Wolf  v.  Beard,  ub.  sup. 

5  Wyna  v.  Allard,  5  Watts  &  S.  (Penn.)  R.  544. 


548  LAW   OF   CARRIERS.  [CH.  XI. 

defendant,  in  driving  his  horses  in  a  sleigh  rapidly  along,  ran 
against  him  and  injured  him,  for  which  he  brought  an  action 
of  trespass.  On  the  trial,  the  plaintiff  offered  to  prove,  that 
at  the  time  of  the  occurrence  the  defendant  was  intoxicated. 
The  defendant  objected  to  the  evidence,  and  the  Court  re- 
jected it,  and  sealed  a  bill  of  exceptions  at  the  instance  of 
the  plaintiff.  The  Court  below  instructed  the  jury,  that  if 
the  injury  done  to  the  plaintiff  was  a  consequence  of  the 
negligence  of  the  defendant  alone,  he  was  entitled  to  recover 
damages  ;  but  if  it  was  occasioned  partly  by  the  negligence 
and  carelessness  of  both  parties,  the  plaintiff  was  not  entitled 
to  recover.  This  direction,  and  the  rejection  of  the  evidence 
mentioned,  were  the  subjects  of  the  errors  assigned.  Per 
Curiam,  — "  The  direction  was  right  ;  and  if  there  was 
error,  it  was  on  the  part  of  the  jury.  The  principle,  that 
there  is  no  recourse  by  action  for  an  injury  which  is  the  con- 
sequence of  negligence  on  both  sides,  was  laid  down  by  this 
Court  in  Simpson  v.  Hand,1  which  was  a  case  of  negligence 
in  the  collision  of  ships.  But  the  law  of  the  particular  case 
was  laid  down  in  this  instance,  by  the  Court  below,  in  exact 
conformity  to  the  direction  of  Mr.  Justice  Alderson,  in  Pluck- 
well  v.  Wilson,2  that  a  person  who  leaves  the  ordinary  side 
of  the  road  is  bound  to  use  more  care  and  diligence,  and  to 
keep  a  better  look-out  to  avoid  concussion  than  would  be 
requisite  if  he  were  to  confine  himself  to  the  proper  side. 
It  was  for  the  jury,  therefore,  to  say,  under  all  the  circum- 
stances, whether  the  plaintiff  was  chargeable  with  negligence, 
having  left  the  sidewalk,  in  not  looking  behind  as  well  as 
before,  to  avoid  contact  with  persons  riding  or  driving  in  the 
middle  of  the  street.  If  he  was,  the  defendant  would  be 
answerable  only  for  negligence  so  wanton  and  gross,  as  to 
be  evidence  of  voluntary  injury.  But  the  evidence  of  intox- 
ication ought  to  have  been  received  ;  not  because  the  legal 
consequences  of  a  drunken  man's  acts  are  different  from 

1  Simpson  v.  Hand,  6  Whart.  (Penn.)  R.  320. 

2  Pluckwell  v.  Wilson,  5  C.  &  Payne,  R.  379,  and  cited  ante,  §  556. 


CH.  XI.]  THEIR  DUTY  AS  TO  PROPERTY  BY  THE  WAY-SIDE.   549 

those  of  a  sober  man's  acts,  but  because,  where  the  evidence 
of  negligence  is  nearly  balanced,  the  fact  of  drunkenness 
might  turn  the  scale,  inasmuch  as  a  man  partially  bereft  of 
his  faculties  would  be  less  observant  than  if  he  were  sober, 
and  less  regardful  of  the  safety  of  others.  For  that  purpose, 
but  certainly  not  to  inflame  the  damages,  the  evidence  ought 
to  have  been  admitted."  Judgment  was  reversed,  and  a 
venire  de  novo  awarded. 

§  566.  (9.)  Their  Duty  to  avoid  Injury  to  Property  on  the 
Way-side.]  It  is  the  duty  of  the  proprietors  of  railroads  and 
steamboats,  and  of  their  agents  and  servants,  in  the  transport- 
ation of  passengers  as  well  as  of  goods,  so  to  manage  their 
fires,  while  their  locomotives  or  boats  are  passing  buildings 
on  the  route  of  travel,  that  no  fire  shall  be  communicated  to 
such  buildings.  Owners  of  land  on  the  shore  of  a  river  or 
lake,  or  of  land  adjoining  the  track  of  a  railroad,  are  not 
prohibited  from  building  thereon,  and  they  are  so  far  entitled 
to  protection  from  persons  lawfully  passing  the  same  with 
vessels  or  carriages  propelled  by  steam,  as  to  be  secured 
against  such  a  want  of  proper  precaution  on  their  part,  the 
consequence  of  which  is  to  set  the  buildings  on  fire.  In  an 
action  for  injuries  so  happening  to  buildings  by  the  owner  of 
them,  it  is  competent  for  him  to  prove  that  experienced  per- 
sons were  accustomed  to  use  precautions  which  the  defend- 
ants neglected.  Persons  erecting  buildings  in  places  such  as 
above-mentioned,  though  they  assume  the  risk  of  more  than 
ordinary  danger  from  accidental  fires,  they  do  not  assume  the 
risk  of  another's  tortious  negligence.1  It  seems  to  be  the  doc- 
trine in  this  country,  that  negligence  being  the  gist  of  the  action 
in  these  and  like  cases,  it  must  be  proved,  and  the  burden  of 
proof  is  on  the  plaintiff ;  that  the  defendant's  fire  being  lawfully 
kindled,  it  being  an  element  applied  to  many  valuable  and  use- 
ful purposes,  and  may  become  destructive  from  causes  not  sub- 


1  Cook  v.  Champlain  Transportation  Company,  1  Denio,  (N.  Y.)  R.  91. 


550  LAW  OF   CARRIERS.  [CH.  XI. 

ject  to  human  control,  the  fact  that  an  injury  has  been  done 
to  others,  is  not  in  itself  evidence  of  negligence.  Thus,  in 
an  action  for  injury  done  to  the  plaintiff's  land  and  fences, 
alleged  to  have  been  occasioned  by  the  defendant's  careless- 
ness in  setting  a  fire  on  his  own  land,  the  burthen  of  proof, 
it  was  held,  was  on  the  plaintiff  to  show  that  the  injury  was 
caused  by  the  neglect  or  -misconduct  of  the  defendant.1 
Again,  where  a  locomotive,  belonging  to  a  railroad  com- 
pany, drawing  a  train  of  cars,  was  passing,  some  sparks  from 
the  smoke-pipe  passed  directly  therefrom  to  a  roof  of  a  build- 
ing of  the  plaintiff  standing  eighteen  inches  from  the  side  of 
the  road,  whereby  the  building  was  set  on  fire  and  consumed  ; 
it  was  held,  in  an  action  against  the  company,  that  the  com- 
pany was  not  liable.2  One  of  the  facts  deserving  of  notice 
in  this  case  is,  that  the  plaintiff  placed  his  building  in  the  posi- 
tion it  was  after  the  road  was  built ;  but  it  is  apprehended 
that  the  owner  might  have  so  built  in  close  proximity  to  the 
railroad,  and  although  the  house  would  be  more  exposed 
than  it  would  be  at  a  greater  distance,  yet  this  does  not 
exempt  the  company's  servants  from  the  obligation  of  care, 
nor  screen  the  company  from  the  consequences  of  their 
negligence.3 

§  566  a.  In  England,  the  fact  that  premises  have  been  set 
on  fire  by  sparks  emitted  from  a  passing  railroad  engine,  it 
seems,  is  primd  fade  evidence  of  negligence  on  the  part  of 
the  company,  rendering  it  incumbent  on  the  company  to 
show  that  some  precautions  had  been  adopted  by  them  rea- 
sonably calculated  to  prevent  such  accident.  Thus,  where  it 
appeared  in  evidence,  in  an  action  against  a  railroad  com- 
pany for  setting  fire  to  a  building  near  the  road  by  sparks  of 
fire  having  escaped  from  the  company's  engines,  that  shortly 


1  Bachelder  v.  Heagan,  6  Shep.  (Me.)  R.  32. 

2  Burroughs  v.  Housatonic  Railroad  Co.  15  Conn.  R.  124.     See  also 
Maule  v.  Wilson,  2  Harring.  (Del.)  R.  493. 

3  Cook  v.  Champlain  Transportation  Co.  ub,  sup. 


CH.  XI.]  THEIR  DUTY  AS  TO  PROPERTY  BY  THE  WAY-SIDE.   551 

after  the  engine  had  passed  near  to  where  the  building  was, 
the  latter  was  observed  to  be  on  fire  ;  that  sparks  or  ignited 
matter  had  been  seen  on  various  occasions  to  be  emitted  by 
the  company's  engines  ;  that  the  emission  of  sparks  depended 
on  the  rate  at  which  the  engines  were  impelled,  having  refer- 
ence to  their  power,  and  there  were  other  modes  by  which 
it  could  be  prevented  ;  it  was  held,  that  the  case  showed  a 
prima  fade  case  of  negligence,  for  which  the  company  was 
responsible.1 

§  567.  Cases,  therefore,  of  damage  done  to  buildings  by 
sparks  of  fire,  or  other  igneous  matter  from  the  engines  of 
steamboats,  or  locomotives  on  railroads,  in  ordinary  use,  are 
proper  for  the  jury  ;  who  must  be  satisfied  that  every  proper 
precaution  was  observed  to  avoid  such  damage.  In  an  action 
against  a  railway  company,  the  declaration  stated,  that  the 
defendants,  by  their  servants,  so  carelessly,  negligently,  and 
improperly  managed  their  steam-engine,  and  the  fire  therein 
contained,  that  through  such  negligence,  &c.  divers  sparks 
and  portions  of  said  fire  passed  from  the  steam-engine  of  the 
defendants,  to  and  upon  a  certain  rick  of  beams  of  the  plain- 
tiff, standing  in  a  field  near  the  said  railway,  which,  by  means 
thereof,  became  ignited  and  consumed.  The  plea  was  "  not 
guilty  ;  "  and  in  a  special  case  stated  for  the  opinion  of  the 
Court  under  a  Judge's  order,  it  was  stated  that  the  plaintiff 
had  erected  the  rick  about  eleven  yards  from  the  rails  of 
the  railway  ;  that  the  engines  and  boiler  used  upon  this 
railway  were  such  as  are  usually  employed  on  railways, 
and  were  used  at  the  time  of  setting  fire  to  the  rick,  in 
the  ordinary  manner,  and  for  authorized  purposes.  It  was 
held,  that  upon  this  statement  there  was  evidence  for  the  jury 
on  the  question  of  negligence  in  the  defendants,  and  that 
they  were  not  entitled  to  a  non-suit ;  and  consequently  that 
the  case  was  improperly  stated  for  the  opinion  of  the  Court. 

1  Piggot  v.  Eastern  Counties  Railway  Co.  15  Law  Journ.  N.  S.  255 ; 
and  10  Jur.  571. 


552  LAW   OF   CARRIERS.  [CH.  XI. 

Maule,  J.,  said, —  "  The  only  question  of  law  here  is,  whether, 
upon  this  statement  of  the  evidence,  the  plaintiff  ought  to  be 
nonsuited.  I  think  clearly  not ;  because  if  the  case  went  to 
the  jury,  there  is  evidence  in  which  they  might  find  negligence, 
in  the  defendants" 1 

§  568.  (10.)  The  Degree  of  their  Responsibility.]  We 
have  already  endeavored  to  show  the  difference  in  respect 
to  the  degree  of  responsibility,  between  common  carriers  of 
passengers  and  common  carriers  of  goods  ;  and,  in  so  doing, 
it  was  stated  to  be  well  established,  that  the  former  are  not, 


1  Aldridge  v.  Great  Western  Railway  Co.  2  Nich.  &  Hare,  Cases  re- 
lating to  Railways  and  Canals,  852.  One  who  is  exercising  a  public  trade 
or  business  which  requires  the  use  of  a  steam-engine,  is  liable  for  any  in- 
jury to  another  in  consequence  of  its  insufficiency.  Spencer  v.  Campbell, 
9  Watts  &  S.  (Penn.)  R.  32.  It  has  been  recognized  as  law  in  many  an- 
cient decisions  in  England,  that  an  action  lies  for  any  act  done  by  a  man  in 
using  his  own  property,  whereby  the  rights  of  another  are  injured,  unless 
such  act  be  altogether  inevitable  and  beyond  his  control.  In  one  instance, 
the  action  was  for  so  negligently  keeping  afire  in  a  field,  that  it  communi- 
cated to  the  plaintiff's  adjoining  close,  and  burnt  his  heath.  After  verdict 
for  the  plaintiff  the  defendant  moved  in  arrest  of  judgment,  and  it  was 
said,  —  "  That  in  fact  in  this  case  the  defendant's  servant  kindled  the  fire 
by  way  of  his  husbandry,  but  that  a  wind  arose  and  drove  it  into  the  plain- 
tiff's field  ;  "  and  the  Court  said,  —  "  The  fire  in  his  fields  is  his  fire  as 
well  as  that  in  his  house.  He  made  it  and  he  must  see  that  it  does  no 
harm,  and  answer  the  damage  if  it  does.  Every  man  must  so  use  his  mvn 
as  not  to  hurt  another ;  but  if  a  sudden  storm  had  rose  which  he  could  not 
stop,  it  was  matter  of  evidence,  and  he  should  have  shown  it.  Tuberville 
v.  Stamp,  1  Lord  Raym.  R.  264  ;  1  Salk.  R.  13.  That  cases  of  this  sort 
fall  within  the  general  rule  of  law  which  requires  that  a  man  shall  so  use 
his  own  property  as  not  to  injure  or  destroy  that  of  another ;  and  that  they 
are  neither  cases  of  contract  or  bailment,  see  Vaughn  v.  Menlove,  4 
Scott,  R.  244,  recognizing  the  doctrine  in  Tuberville  ».  Stamp,  ub.  sup. 
In  conformity  to  the  maxim  sic  utere  tuo,  &c.,  where  the  defendants  dug 
a  canal  for  the  purposes  authorized  by  their  charter  of  incorporation,  and 
•were  obliged  to  blast  rocks  with  gunpowder,  and  the  fragments  were  thrown 
against  and  injured  the  plaintiff's  house  ;  it  was  held,  that  the  defendants 
were  liable,  though  no  negligence  was  alleged  or  proved.  Kay  v.  Cohoes 
Co.  2  Comst.  (N.  Y.)  R.  159. 


CH.  XI.]  PASSENGER  CARRIERS — DEGREE  OF  RESPONSIBILITY.  553 

like  the  latter,  insurers  against  all  injuries,  except  by  the  act 
of  God,  or  by  the  public  enemy.  It  was  moreover  stated, 
that  the  nature  of  their  undertaking  was  to  carry  "  safely 
and  securely,"  and  that  although  they  did  not  thus  impliedly 
warrant  the  safety  of  the  passengers  at  all  events,  yet  that 
they  were  bound  to  the  "  utmost  "  care  and  skill  in  the  per- 
formance of  their  duty.1  The  term  here  used  expresses  the 
idea  of  something  beyond  ordinary  care,  which  the  law  con- 
siders the  limit  of  liability,  to  which  carriers  of  goods  for 
hire,  who  are  not  common  carriers,  are  held.2  The  degree 
of  their  responsibility,  therefore,  to  which  carriers  of  passen- 
gers are  subjected,  is  not  ordinary  care,  which  will  make 
them  liable  only  for  ordinary  neglect,  but  extraordinary  care, 
which  renders  them  liable  for  slight  neglect.3  It  is  the  dan- 
ger to  the  public  which  may  proceed  even  from  slight  faults, 
unskilfulness  or  negligence  of  passenger  carriers  or  their  ser- 
vants, and  the  helpless  state  in  which  passengers  by  their 
conveyances  are,  which  have  induced  both  Courts  of  Law 
and  juries,  both  in  England  and  in  America,  to  bind  the  rule 
of  the  contract  locatio  operisf  much  tighter  than  they  could 
be  insisted  for,  on  the  ordinary  principles  of  that  contract.5 
The  most  inconsiderable  departure,  therefore,  from  the  im- 
portant duties  which  in  the  preceding  pages  are  laid  down 


1  Ante,  $521-524. 

2  See  ante,  Chap.  III. 

3  See  Ingalls  v.  Bills,  9  Met.  (Mass.)  R.  1 ;  Stokes  v.  Saltonstall,  13 
Peters,  (U.  S.)  R.  181  ;  and  see  also  ante,  §  523. 

4  See  ante,  §  13. 

5  1  Bell,  Com.  372 ;   Story  on  Bailm.  §  601 ;  2  Kent,  Comm.  600. 
"They,"  (carriers  of  passengers)  "are  bound  to  the  utmost  care  and 
diligence  of  very  cautious  persons  ;  and  of  course  they  are  responsible  for 
any,  even  the  slightest  neglect."    2  Greenl.  Ev.  $  221.     Passenger  carri- 
ers, says  Mr.  C.  J.  Shaw,  "  are  held  to  the  strictest  responsibility  for 
care,  vigilance,  and  skill,  on  the  part  of  themselves  and  all  persons  em- 
ployed by  them,  and  they  are  paid  accordingly.     The  rule  is  founded  on 
the  expediency  of  throwing  the  responsibility  upon  those  who  can  best 
guard  against  it."    Farwell  ».  Boston  and  Worcester  Railroad  Corpora- 
tion, 4  Met.  (Mass.)  R.  49. 

47 


554  LAW  OF   CARRIERS.  [cH.  XI. 

and  explained,  as  duties  imposed  upon  passenger  carriers, 
will  render  them  liable  for  the  consequences. 

§  569.  That  the  onus  probandi  is  on  the  proprietor  of  the 
vehicle  to  establish,  that  there  has  been  no  disregard  what- 
ever of  his  duties,  and  that  the  damage  has  resulted  from  a 
cause  which  human  care  and  foresight  could  not  prevent,  is 
well  setted.1  As  was  laid  down  by  the  Court  in  McKinney 
v.  Niel,2  the  upsetting  of  a  stage-coach  is  primd  facie  evi- 
dence of  negligence  ;  and  a  passenger,  who  has  been  injured, 
need  show  nothing  more  to  sustain  his  action  ;  and  it  will 
then  be  incumbent  on  the  defendant  to  show,  by  way  of 
reducing  the  damages,  or  in  bar  of  the  action,  the  circum- 
stances of  the  case.  In  Stokes  v.  Saltonstall,  in  the  Supreme 
Court  of  the  United  States,  it  was  admitted  that  the  carriage 
was  upset,  and  the  plaintiff's  wife  injured  ;  and  it  was  held, 
it  was  incumbent  on  the  defendant  to  prove  that  the  driver 
was  a  person  of  competent  skill,  and  of  good  habits,  and  in 
every  respect  qualified  for  his  business  ;  and  that  he  acted 
on  the  occasion  in  question  with  reasonable  skill,  and  with 
the  utmost  prudence  and  caution  ;  and  that  if  the  disaster  in 
question  was  occasioned  by  the  least  negligence,  or  want  of 
skill  or  prudence  on  his  part,  then  the  defendant  was  liable.3 
In  a  case  where  an  accident  happened  to  a  passenger  on  a 
railroad,  it  was  held  to  be  primd  fade  evidence  of  negli- 
gence ;  and  Lord  C.  J.  Denman  told  the  jury,  that  it  having 
been  shown,  that  the  exclusive  management  of  the  machinery 
and  the  railway  was  in  the  hands  of  the  defendants,  it  was 
presumable  that  the  accident  arose  from  their  want  of  care, 
unles  they  gave  some  explanation  of  the  cause  by  which  it  was 
produced  ;  which  explanation  the  plaintiff,  not  having  the 
same  means  of  knowledge,  could  not  reasonably  be  expected 


1  Ibid  ;  Ingalls  v.  Bills,  ub.  sup. ;  Ware  v.  Gay,  11  Pick.  (Mass.)  R. 
106  ;  Christie  v.  Griggs,  2  Camp.  R.  79. 

2  McKinney  v.  Niel,  1  McLean,  (Cir.  Co.)  540. 

3  Stokes  v.  Saltonstall,  13  Peters,  (U.  S.)  R.  181. 


CH.  XI.]  PASSENGER  CARRIERS — DEGREE  OF  RESPONSIBILITY.  555 

to  give.  The  learned  judge  also  adverted  to  the  suggestion 
of  a  witness,  that  the  speed  was  too  great  for  the  state  of  the 
rails  at  the  spot,  as  furnishing  one  hypothesis  that  might  ac- 
count for  the  event.1  If  a  passenger  by  railroad  permits  his 
hand  to  extend  outside  of  the  window  of  the  car,  whereby 
his  arm  is  broken  in  passing  a  bridge,  the  carrier  is  not  liable 
for  the  injury  ;  though  if  the  place  of  accident  is  one  of 
unusual  danger,  it  is  the  duty  of  the  carrier,  or  his  servants, 
to  give  warning.2 

§  570.  But  as  there  has  been  occasion  before  to  say,  passen- 
ger carriers  not  being  insurers,  are  not  responsible  for  injuries 
from  accidents  where  the  utmost  skill  and  diligence  have 
been  employed  ;  and  on  this  point  we  would  again  refer  the 
reader  to  the  case  of  Ingalls  v.  Bills.3  Accidents  may  happen, 
notwithstanding  the  utmost  care  and  diligence  are  exercised 
to  prevent  them.  The  lights  which  it  is  the  duty  of  passenger 
carriers  to  have  in  a  dark  night,  may  be  obscured  by  fog ; 
the  horses  may  be  frightened  without  the  fault  of  the  driver, 
as  by  the  sudden  firing  of  a  gun  ;  or  the  driver  may  be  de- 
ceived by  the  sudden  alteration  of  objects  on  the  way ;  or  an 
unexpected  obstruction  may  be  encountered ;  or  the  driver, 
from  the  intense  severity  of  the  cold,  may,  at  the  time  of 
unexpected  danger,  become  physically  incapable  of  manag- 
ing his  horses,  or  of  otherwise  doing  his  duly.  These,  and 
the  like  cases,  are  such  as  will  exonerate  the  proprietors  of 
the  vehicle.4  If  a  driver  of  a  stage-coach  imprudently  at- 
tempts to  pass  another  on  the  road,  and  it  appears  that  the 
latter  did  not  say  or  do  any  thing  to  provoke  a  reckless  com- 
petition, and  on  the  contrary,  sought  to  avoid  it,  and  did  all 
that  a  prudent  and  skilful  driver  could  do  to  avoid  the  con- 
sequences of  the  recklessness  of  the  former,  he  is  not  liable, 

1  Carpue  r.  London  and  Brighton  Railway  Co.  5  Adol.   &  Ell.  R. 
(N.  S.)  747. 
a  Laing  «.  Colder,  8  Barr,  (Penn.)  R.  479. 

3  Ingalls  v.  Bill,  9  Met.  (Mass.)  R.  1,  and  cited  ante,  §  536. 

4  Story  on  Bailrn.  $  602. 


556  LAW   OF  CARRIERS.  [CH.  XI. 

however  serious  the  consequences  may  have  been  to  his 
passengers.1 

§  571.  (11.)  Their  Duties  and  Liabilities  in  respect  to 
Baggage-}  This  is  a  subject  which  has  already  been  fully 
considered  and  illustrated  by  the  aid  of  adjudged  cases,  in 
the  preceding  portions  of  our  work,  to  which  it  more  pro- 
perly belongs,  as  constituting  the  law  of  the  duties  and 
responsibilities  of  common  carriers  of  goods  ;  and  to  which 
we  would  refer  the  reader  ;  and  the  general  rules  of  law  on 
the  subject  we  shall  here  only  summarily  recapitulate.  Public 
passenger  carriers  are  bound  not  only  to  receive  as  passengers 
all  persons  who  offer  themselves  as  such,  but,  like  common 
carriers  of  goods  unattended  by  the  owner,  they  are  bound  to 
receive  the  articles  which  the  traveller  has  with  him,  and 
which  constitute  his  baggage  or  luggage?  We  have 
already  seen,  that  common  carriers  of  passengers,  in  so  far 
as  regards  the  baggage  or  luggage  delivered  to  them  by  a 
traveller,  are  liable  to  the  same  extent  as  common  carriers  of 
goods  and  merchandise  ;  3  that  is,  they  insure  baggage  against 
all  losses,  whether  proceeding  from  the  negligence  or  miscon- 
duct of  themselves,  their  servants,  or  even  all  third  persons, 
with  the  exception  of  the  owner.  The  only  mode,  in  short, 
by  which  they  can  exonerate  themselves  from  liability  in  case 
the  baggage  of  a  passenger  is  lost,  is  by  showing  that  the  loss 
was  occasioned  by  the  act  of  God  or  the  public  enemy,4  or 
by  the  negligence  of  the  owner  himself  after  he  has  assumed 
the  custody,  or  direction  of  it.5  A  public  notice,  that  "  all 
baggage  is  at  the  risk  of  the  owner,"  will  not  have  this  effect.6 

1  By  the  Court,  in  its  charge  to  the  jury  in  Peck  v.  Niel,  3  McLean, 
(Cir.  Co.)  R.  22  ;  Monroe  ».  Leach,  7  Met.  (Mass.)  R.  274. 

2  As  to  the  duty  of  common  carriers  to  receive  baggage,  see  the  subject 
treated  at  large,  ante,  Chap.  V.,  and  ante,  $  524,  et  seq. 

3  See  the  subject  fully  considered  in  Chap.  I V.  §  107,  et  seq.,  and  Chap. 
VIII.  §  317,  et  seq. 

4  Ante,  Chap.  VI. 

5  Ante,  §  113,  140. 

6  See  ante,  §  238,  et  seq. 


CH.  XI.]  PASSENGER  CARRIERS — LIABILITY  AS  TO  BAGGAGE.  557 

At  the  termination  of  the  route  of  a  stage-coach,  railroad,  or 
steamboat,  the  conductors  thereof  are  also  bound  to  make  a 
proper  delivery  of  the  baggage  to  the  true  owner  of  it ;  a 
duty  by  no  means  difficult,  as  it  requires  but  ordinary  care  in 
marking  the  baggage  or  luggage,  entering  it  on  the  way-bill, 
and  delivering  a  check  to  the  owner.1  The  mere  fact,  we 
have  seen,  that  goods,  in  the  form  of  merchandise,  trans- 
ported by  a  common  carrier  of  them,  have  arrived  at  their 
place  of  destination  in  safety,  is  no  discharge  of  the  carrier 
from  his  responsibility  until  they  are  delivered  to  the  owner, 
even  if  he  be  not  ready  at  once  to  receive  it ;  for  he  is  under 
obligation  to  keep  it  for  a  reasonable  time,  although  if  it  is 
not  called  for  in  a  reasonable  time,  his  liability  as  a  common 
carrier  will  be  reduced  to  that  of  an  ordinary  bailee.  The 
same  rule  applies  in  respect  to  the  delivery  of  articles  in  the 
form  of,  and  composing  the  baggage  of  a  traveller.2  Like  a 
common  carrier  of  goods,  a  passenger  carrier  is  also  liable, 
as  we  have  seen,  for  a  mis-delivery  of  baggage,  although  it  is 
delivered  to  a  wrong  person  by  mistake,  and  with  no  fraud- 
ulent intent.3  The  responsibility  of  the  carrier  for  the  safety 
of  the  baggage  commences,  of  course,  with  a  delivery  of  it 
to  him,  and  a  delivery  at  his  office  or  to  an  agent,  is  a  deliv- 
ery to  him.4  These  general  rules  have  been  already  laid 


1  Story  on  Bailm.  §  595  ;  and  see  the  subject  of  the  proper  delivery  of 
baggage  fully  considered,  ante  $  317-325. 

2  jln^e,  $283-294. 

3  Ante,  §321-327,  432. 

4  Since  preparing  what  is  contained  in  the  former  portion  of  the  work 
on  the  subject  of  the  delivery  of  goods  and  baggage  to  a  carrier  (see  ante, 
Chap.  V.)  the  author  has  met  with  the  following  case  in  the  Boston  Atlas 
of  December  16,  1848.     Court  of  Common  Pleas :  Jordan  v.  Fall  River 
Railroad  Company  :  This  was  an  action  brought  to  recover  of  the  defend- 
ant corporation,  as  common  carriers,  the  value  of  a  travelling  trunk  and 
its  contents.     The  evidence  was,  that  the  plaintiff  engaged  a  passage  from 
Boston  to  Bridgewater,  on  the  twelfth  day  of  June  last,  in  the  cars  of  the 
defendants ;  and  delivered  her  trunk  to  the  baggage-master  of  the  Old 
Colony  Railroad,  who  was  proved  to  be  the  agent  of  the  defendants,  for 

47* 


558  LAW   OF   CARRIERS.  [CH.  XI. 

down  and,  as  we  have  said,  more  fully  illustrated  in  preced- 
ing portions  of  the  work,  which  have  been  referred  to  in  the 
notes  below.1 

§  571  a.  But  the  liability  of  passenger  carriers  for  the  loss 
of  baggage  being  equal  to  that  of  common  carriers  of  goods, 
supposes  that  the  company  do  not  protect  themselves  as  to 
the  baggage  of  the  traveller  by  some  special  contract  on  the 
subject.  Some  of  the  railway  companies  in  England  have 
regulations  limiting  their  liabilities  in  regard  to  passengers' 
luggage,  the  purport  of  such  regulations  being,  "  that  the 
charge  made  for  passengers  does  not  extend  to  luggage,  and 
that  the  company  will  not  be  answerable  for  luggage,  unless 
booked  and  paid  for.  Such  a  regulation  (and  a  carrier  has 
a  right  to  make  all  reasonable  regulations,2)  may  be  reasona- 
ble where  the  practice  of  booking1  luggage  is  really  carried  out, 
and  proper  facilities  are  afforded  to  the  public  for  complying- 
with  it.  Railway  companies,  and  coach  proprietors  and 
other  carriers,  may  refuse  to  take  charge  of  luggage  unless 
booked  and  given  over  to  their  servants  in  conformity  with 
the  general  rules  which  they  have  found  it  necessary  to 
establish  for  conveniently  conducting  their  business.  But 
the  case  is  different  when,  as  frequently  happens,  the  regula- 
tion respecting  booking  is  a  dead  letter,  and  the  general 

the  reception  of  baggage  on  their  road.  The  plaintiff  proved  the  contents 
of  her  trunk,  by  the  person  who  helped  her  to  pack  it.  The  contents 
were  several  valuable  ladies'  dresses,  and  other  articles  of  ladies'  apparel, 
amounting  to  the  sum  of  one  hundred  dollars  and  forty-two  cents,  and  the 
sum  of  $  375  in  gold  coin.  The  trunk  was  found  after  a  period  of  about 
three  months,  at  the  Holliston  depot  on  the  Worcester  Road,  and  had  then 
been  broken  open  and  the  above  amount  of  clothing  taken  out  and  all  the 
money.  The  defendants  contended,  that  a  delivery  of  the  trunk  to  the 
baggage-master  of  the  Old  Colony  Road  was  no  delivery  to  them ;  and 
that  if  it  was  proved  otherwise,  they  were  in  no  event  liable  for  the  money, 
both  of  which  points  the  Court  ruled  in  favor  of  the  plaintiff,  who  had  a 
verdict  for  the  sum  of  five  hundred  and  twenty-seven  dollars  and  sixty- 
seven  cents. 

1  And  see  the  Index,  Tit.  "  Baggage." 

2  Ante,  §  245,  125,  525  et  seq. 


CH.  XI.]  PASSENGER  CARRIERS — WHEN  LIABLE  FOR  AGETNS.  559 

practice  is  to  take  charge  of  passengers'  luggage  without 
requiring  it  to  be  booked.  In  this  case  the  regulation  is 
nothing  but  a  notice,  the  legal  effect  of  which  is,  to  say  the 
least,  very  doubtful,1  and  which,  if  the  directors  think  it 
advisable  to  issue,  they  ought  to  issue  as  a  notice.  Issued  as 
a  mere  notice,  such  regulation  could  have  no  further  effect  in 
limiting  the  company's  liability,  than  that  they  may  refuse  to 
take  charge  of  passengers'  luggage,  unless  such  reasonable 
regulations  as  they  have  found  it  necessary  for  their  conven- 
ience to  establish,  are  complied  with.  If  they  do  actually 
take  charge  of  such  luggage,  they  incur  the  ordinary  respon- 
sibility of  common  carriers.2  But  it  would  appear,  that 
where  the  company  take  care  to  embody  the  notice  in  the 
tickets  delivered  to  every  passenger  on  taking  his  place,  as 
part  of  the  terms  on  which  they  are  willing  to  accept  him, 
this  would  constitute  a  special  contract  on  the  subject,  so  that 
the  company  would  only  be  liable  for  negligence.3 

§  572.  (12.)  Their  Liability  for  the  Acts  of  their  Servants 
and  Agents.}  We  have  seen  that  passenger  carriers  are  not 
only  personally  bound  for  their  own  acts  and  omissions  in 

1  Ante,  §  238,  et  seq. 

2  Report  of  the  Officers  of  the  Railway  Department  of  the  Board  of 
Trade,  cited  in  Walford,  Sura,  of  the  Law  of  Railways,  p.  326.     See 
ante,  §  107-117,238. 

3  See  Farmer  v.  Grand  Junction  Railway  Co.  4  M.  &  Welsh.  R.  752. 
And  see,  as  to  the  effect  of  a  special  contract,  ante,  §  225.     A  railway 
company  may  also  be  entitled  to  a  protection  more  or  less  extensive  in 
regard  of  the  luggage  of  passengers,  under  the  provisions  of  their  own  act 
of  incorporation  ;  as,  for  instance,  where  a  railway  act  provided  that  the 
company  should  not  be  responsible  for  any  thing  taken  with  him,  by  a 
passenger,  save   articles   of  clothing  of  given   weight  and  dimensions. 
Under  a  provision  of  the  above  kind,  the  company  are  exempt  from  all 
liability,  in  respect  of  goods  accompanying  a  passenger,  not  being  articles 
of  clothing  of  the  requisite  weight  and  dimensions;  that  is  to  say,  from 
all  liability  as  carriers  ;  for  the  clause  of  course  is  not  a  license  for  the 
company  to  deal  with  such  articles  at  their  own  free  will  and  pleasure. 
See  Elwell  ».  Grand  Junction  Railway  Co.  5  M.  &  Welsb.  R.  669  ;  and 
ante,  §  250,  267,  et  seq. 


560  LAW   OF   CARRIERS.  [cH.  XI. 

the  transportation  of  travellers  and  their  baggage,  but  also 
for  the  misconduct  and  negligence  of  the  agents  in  their 
employ.  A  declaration  which  charges  the  defendant  with 
having  negligently  driven  his  cart  against  the  plaintiff's  horse, 
is  supported  by  evidence  that  the  defendant's  servant  drove 
the  cart.1  A  charge,  that  the  defendant  is  the  owner  of  the 
vehicle  is  supported  by  evidence  that  he  holds  himself  out 
to  the  world  as  the  owner  of  it,  by  suffering  his  name  to 
remain  printed  on  it,  and  over  the  door  of  the  house  of 
business  to  which  it  belongs ;  although  it  is  proved,  that  he 
had  for  some  days  ceased  to  be  the  owner  of  the  vehicle, 
and  was  not  concerned  in  the  business,  having  relinquished 
his  business  to  a  former  partner.2 

§  573.  If  a  servant,  without  his  master's  knowledge,  takes 
his  master's  carriage  out  of  the  coach-house,  and  with  it 
commits  an  injury,  the  master  is  not  liable,  because  he  has 
not,  in  such  case,  intrusted  the  servant  with  the  carriage. 
But  whenever  the  master  has  intrusted  the  servant  with  the 
control  of  the  carriage,  it  is  no  answer  to  say,  that  the  ser- 
vant acted  improperly  in  the  management  of  it ;  but  the 
master,  in  such  case,  will  be  liable,  because  he  has  put  it  in 
the  servant's  power  to  mismanage  the  carriage  by  intrusting 
him  with  it.  Therefore,  where  a  servant,  having  set  his 
master  down  in  Stamford  street,  was  directed  by  him  to  put 
up  in  Castle  street,  but  instead  of  so  doing,  went  to  deliver 
a  parcel  of  his  own  in  another  part  of  London,  and  in  return- 
ing drove  the  carriage  against  an  old  woman  and  injured  her  ; 
it  was  held,  that  the  master  was  responsible  for  his  servant's 
act.8 

§  574.  It  is  laid  down  by  Blackstone,  that  if  a  servant,  by 
his  negligence,  does  any  damage  to  a  stranger,  the  master 


1  Brucker  v.  Fromont,  6  T.  R.  659. 

2  Stables  v.  Eley,  1  C.  &  Payne,  R.  614. 

3  Sleath  v.  Wilson,  9  C.  &  Payne,  R.  607. 


CH.  XI.]  PASSENGER  CARRIERS — WHEN  LIABLE  FOR  AGENTS.  561 

shall  be  answerable  ;  but  the  damage  must  be  done  while  he 
is  actually  employed  in  his  master's  service  ;  otherwise  the 
servant  shall  answer  for  his  own  misbehavior.1  The  question 
therefore  is,  in  case  of  an  injury  done  to  the  person  of  a  pas- 
senger,—  who  employed  the  person  who  did  the  injury?2 
Any  arrangement,  we  have  seen,  made  between  common 
carriers  of  goods  and  their  servants  or  agents,  whereby  the 
latter  are  exclusively  to  receive  the  compensation  for  the 
conveyance,  will  not  exempt  the  carriers  from  responsibility ; 
unless  such  arrangement  was  known  by  the  owner  of  the 
goods,  and  he  contracts  exclusively  with  the  servants  and 
agents.3 

575.  There  was  an  important  question  as  to  the  liability  of 
a  master  for  the  acts  of  his  driver,  in  Laugher  v.  Pointer,4 
in  which,  there  being  a  difference  of  opinion  on  the  bench, 
the  case  was  directed  to  be  argued  before  the  twelve  Judges. 
The  question  was,  that  where  the  owner  of  a  carriage  hired 
of  a  stable-keeper  a  pair  of  horses  to  draw  it  for  a  day,  and 
the  owner  of  the  horses  provided  a  driver,  through  whose 
negligent  driving  an  injury  was  done  to  a  horse  belonging  to 
a  third  person,  the  owner  of  the  carriage  was  not  liable  to  be 
sued  for  such  injury.5  The  owner  of  the  carriage  would 


1  1  Black.  Comm.  431,  and  see  ante,  $  513,  517.     A  driver  sent  by  the 
owner  of  a  carriage  is  his  servant,  and  unless  the  hirer  causes  the  driver 
to  go  beyond  the  contract  of  hiring,  he  will  not  be  liable  for  the  acts  of 
the  driver  occasioning  injury  to  the  carriage  or  horses.     Hughes  v.  Boyer, 
9  Watts,  (Penn.)  R.  556. 

2  Milligan  v.  Wedge,  12  Adol.  &  Ell.  R.  737.     Rapson  v.  Cubitt,  9 
M.  &  Welsh.  R.  710,  is  an  authority  to  show  that  the  party  injured  by 
the  negligence  of  another,  cannot  go  beyond  the  party  who  did  the  injury  ; 
unless  he  can  establish  that  the  latter  stood  in  the  relation  of  a  servant  to 
the  party  sued. 

3  See  ante,  §  77,  85. 

4  Laugher  v.  Pointer,  5  B.  &  Cress.  R.  547. 

5  Held  by  Abbott,  C.  J.,  and  Littledale,  J.,  that  the  owner  of  the  car- 
riage was  not  liable  to  be  sued  for  such  injury,  Bayley  and  Holroyd,  Js., 
diss.     "The  able  judgments  on  both  sides  have,"  observes  Judge  Story, 


562  LAW   OF    CARRIERS.  [CH.  XI. 

have  been  liable  if  he  had  at  all  participated  in  the  negli- 
gence of  the  driver,  or  if  the  circumstances  were  such  that 


"exhausted  the  whole  learning  on  the  subject,  and  should,  on  that 
account,  be  attentively  studied."  Story  on  Agency,  p.  406.  They  were 
considered  fully  by  the  Court  in  Quarman  v.  Bennett,  6  M.  &  Welsh.  R. 
499,  and  the  Court  considered  the  weight  of  authority  in  favor  of  the  view 
taken  by  Abbott,  C.  J. ,  and  by  Littledale,  J.  The  question  in  Quarman 
v.  Burnett,  ub.  sup.,  was  treated  as  similar  in  its  circumstances  to  the  one 
in  Laugher  v.  Pointer,  ub.  sup.,  and  it  was  decided  in  favor  of  the  defend- 
ant. In  the  Court  of  Queen's  Bench,  (140,)  in  Milligan  v.  Wedge,  12 
Adol.  &  Ell.  R.  737,  Lord  Denraan,  C.  J., said,  —  "I  think  we  are  bound 
by  the  late  decision  in  Quarman  v.  Burnett,  which  was  pronounced  after 
full  consideration."  The  case  before  the  learned  Judge  was  this  :  The 
buyer  of  a  bullock  employed  a  licensed  drover  to  drive  it  from  Smithfield. 
By  the  by-laws  of  London,  no  one  but  a  licensed  drover  could  be  so  em- 
ployed. The  drover  employed  a  boy  to  drive  the  bullock  (together  with 
others,  the  property  of  different  persons,)  to  the  owner's  slaughter-house. 
Mischief  was  occasioned  by  the  bullock,  through  the  carelessness  of  the 
boy  ;  and  it  was  held,  that  the  owner  was  not  liable  for  the  injury  ;  the 
boy  not  being,  in  point  of  law,  his  servant.  "  The  true  test,"  said  Cole- 
ridge, J.,  "  is  to  ascertain  the  relation  between  the  party  charged  and  the 
party  actually  doing  the  injury.  Unless  the  relation  of  master  and  servant 
exist  between  them,  the  act  of  one  creates  no  liability  in  the  other.  Apply 
that  here.  I  make  no  distinction  between  the  licensed  drover  and  the  boy. 
Suppose  the  drover  to  have  committed  the  injury  himself.  The  thing  done 
is  the  driving.  The  owner  makes  a  contract  with  the  drover  that  he  shall 
drive  the  beast,  and  leaves  it  under  his  charge ;  and  then  the  driver  does 
the  act.  The  relation,  therefore,  of  master  and  servant  does  not  exist  be- 
tween them."  By  Littledale,  J.  :  "I  gave  my  opinion  so  fully  in  Laugher 
v.  Pointer,  which  has  since  been  confirmed  by  the  Court  of  Exchequer,  in 
Quarman  v.  Burnett,  I  need  say  no  more  now,  than  that  I  retain  the  opin- 
ion." It  appears  that  the  liability  of  any  one,  other  than  the  party  com- 
mitting the  wrongful  act,  rests  upon  the  principle  qui  facil  per  ahum  facit 
per  se.  In  the  case  of  a  person  riding  in  his  own  carriage,  with  a  coach- 
man and  horses  hired  for  a  day,  when  the  accident  complained  of  took 
place,  (as  in  Laugher  v.  Pointer,  supra,)  the  livery-stable  keeper  alone 
stood  in  the  relation  of  master  to  the  wrong-doer.  It  was  he  who  had  se- 
lected the  coachman,  and  the  fitness  of  the  servant  for  his  employment  was 
matter  of  discretion  for  him.  For  its  exercise  he  was  responsible  ;  of 
course,  had  he  deputed  the  exercise  of  that  discretion  to  another,  he 
would  have  been  equally  responsible.  But  the  proposition  is  clear,  no 
other  person  than  the  master  of  such  servant  can  be  liable,  on  the  simple 


CH.  XI.]  PASSENGER  CARRIERS — WHEN  LIABLE  FOR  AGENTS.   563 

it  could  be  legally  so  considered.  Thus,  in  an  action  against 
three  persons  for  a  joint  trespass  in  killing  a  horse,  by  care- 
lessly driving  against  him  in  the  highway,  and  it  appeared 
that  one  of  the  defendants  lent  the  wagon  to  the  others,  and 
then  rode  with  them  by  invitation,  and  after  the  accident 
acted  as  one  of  the  party  jointly  concerned  ;  it  was  held,  that 
he  was  equally  liable  with  the  others,  and  was  not  to  be 
regarded  as  a  mere  passenger.1 

§  576.  On  the  principle  which  has  already  been  considered, 
viz.,  that  a  plaintiff  suing  for  negligence  must  himself  be 
without  fault,  and  must  not  himself  have  contributed  to  the 
injury  caused  in  part  by  the  defendant's  negligence,  —  if 
several  servants  are  engaged  at  the  same  work,  and  one  of 
them  is  injured  by  the  fault  of  negligence  in  which  all  par- 
ticipated, (the  master  being  absent  at  the  time,)  the  servant 
injured  cannot  recover  of  the  master  for  the  injury  ;  although 
the  act  complained  of  was  done  under  the  superintendence 
of  a  foreman  appointed  by  the  master.2 

§  577.  In  the  above  case  the  negligent  act  was  as  much 
the  fault  of  the  plaintiff  as  of  the  defendant  or  his  foreman  ; 


ground  that  the  servant  is  the  servant  of  another,  and  his  act  the  act  of 
another  ;  and  consequently,  a  third  person  entering  into  a  contract  with 
the  master,  which  does  not  raise  the  relation  of  master  and  servant,  cannot 
thereby  be  rendered  liable.  It  fell  from  Littledale,  J.,  in  Laugher  v. 
Pointer,  that  the  law  does  not  recognize  a  several  liability,  in  two  princi- 
pals who  are  unconnected  ;  if  they  are  jointly  liable,  you  may  sue  either, 
but  you  cannot  have  two  separately  liable.  This  doctrine  is  one  of  gen- 
eral application,  irrespective  of  the  nature  of  the  employment.  The  de- 
cision in  Rudie  v.  North  Western  Railway  Co.,  and  in  Hobbitt  v.  Same, 
13  Jur.  659,  is  an  important  corollary  to  both  the  cases  of  Laugher  v. 
Pointer,  and  Quarman  v.  Burnett,  upon  the  subject  of  the  liability  of  a 
person  for  injuries  occasioned  by  the  negligence  of  another  when  employed 
on  his  behalf.  See  Lond.  Law  Mag.  for  February,  1850,  p.  105,  and 
Law  Rep.  for  April,  1850,  p.  626,  634.  See  post,  §  667. 

1  Bishop  v.  Ely,  9  Johns.  (N.  Y.)  R.  294. 

2  Brown  ».  Maxwell,  6  Hill,  (N.  Y.)  R.  592. 


564  LAW   OF   CARRIERS.  [cH.  XI. 

but  suppose  the  case,  that  one  of  the  servants  employed  by 
a  master  is  injured  by  the  negligent  act  of  another  servant 
in  the  same  employment,  and  was  himself  free  from  all  fault, 
and  was,  in  no  sense,  a  party  to  the  negligence  by  which  he 
was  injured.  It  was  admitted  in  Priestly  v.  Fowler,1  in 
1837,  that  there  had  been  no  precedent  in  England  for  an 
action  by  a  servant  against  his  master,  for  any  injury  re- 
ceived by  the  former  in  the  regular  course  of  the  latter's 
employment.  The  case  of  Farwell  v.  Boston  and  Worcester 
Railroad  Corporation,  decided  in  1842,2  presented  the  case, 
where  two  persons  were  in  the  service  of  one  railroad  com- 
pany, whose  business  was  to  employ  their  trains  of  cars  for 
the  transportation  of  persons  and  goods  for  hire  ;  and  the  two 
servants  were  employed  for  the  performance  of  separate 
duties,  but  all  tending  to  one  and  the  same  purpose,  that  of 
a  safe  and  expeditious  transmission  of  the  trains  ;  and  the 
question  was  directly  raised,  whether  for  damages  sustained 
by  one  of  the  persons  so  employed,  exclusively  by  means  of 
the  negligence  of  the  other,  the  party  injured  had  a  remedy 
against  the  common  employer.  Mr.  C.  J.  Shaw  pronounced 
the  action  "  one  of  new  impression  in  our  Courts ;  "  and  he 
considered  it  an  argument  against  such  an  action,  (though 
not  a  decisive  one,)  that  "  no  such  action  had  before  been 
maintained."  The  case  was  this :  A  railroad  company 
employed  A.,  who  was  careful  and  trusty  in  his  general 
character,  to  tend  the  switches  on  their  road  ;  and  after  he 
had  been  long  in  their  service,  they  employed  B.  to  run  the 
passenger-train  of  cars  on  the  road,  B.  knowing  the  employ- 
ment and  character  of  A.  The  company,  it  was  held,  were 
not  answerable  to  B.  for  an  injury  received  by  him,  while 
running  the  cars,  in  consequence  of  the  carelessness  of  A.  in 
the  management  of  the  switches.  The  learned  Judge,  in 
giving  the  opinion  of  the  Court,  said  :  That  where  several 
persons  were  employed  in  the  conduct  of  one  common  enter- 

i  Priestly  v.  Fowler,  3  M.  &  Welsh,  R.  1. 

8  Farwell  v.  Boston  and  Worcester  Railroad  Corp.  4  Met.  (Mass.)  R.  49. 


CH.  XI.]  PASSENGER  CARRIERS — WHEN  LIABLE  FOR  AGENTS.  565 

prise  or  undertaking,  and  the  safety  of  each  depends  much 
on  the  care  and  skill  with  which  each  other  shall  perform 
his  appropriate  duty,  each  is  an  observer  of  the  conduct  of 
the  others,  can  give  notice  of  any  misconduct,  incapacity,  or 
neglect  of  duty,  and  leave  the  service  if  the  common  em- 
ployer will  not  take  such  precautions,  and  employ  such 
agents  as  the  safety  of  the  whole  party  may  require.  By 
these  means  the  safety  of  each  will  be  much  more  effectually 
secured,  than  could  be  done  by  a  resort  to  the  common  em- 
ployer for  indemnity  in  case  of  loss  by  the  negligence  of  each 
other.  Regarding  the  case  in  this  light,  he  considered  it  the 
ordinary  case  of  one  sustaining  an  injury  in  the  course  of 
his  aivn  employment,  in  which  he  must  bear  the  loss  himself. 
And  the  learned  Judge  maintained,  that  the  responsibility 
which  one  is  under  for  the  negligence  of  his  servant  in  the 
conduct  of  his  business,  towards  third  persons,  is  founded 
upon  another  and  distinct  principle  from  that  of  implied 
contract,  and  stands  upon  its  own  reasons  of  policy  ;  and  the 
same  reasons  of  policy  limit  this  responsibility  to  the  case  of 
strangers,  for  whose  security  alone  it  is  established.  Like 
considerations  of  policy  and  general  expediency  also  forbid 
the  extension  of  the  principle,  so  far  as  to  warrant  a  servant 
in  maintaining  an  action  against  his  employers  for  an  indem- 
nity which  was  not  contemplated  in  the  nature  and  terms  of 
the  employment,  and  which,  if  established,  would  not  con- 
duce to  the  general  good.  That  persons  are  not  to  be  respon- 
sible in  all  cases  for  the  negligence  of  those  employed  by 
them,  the  learned  Judge  relied  upon  the  decisions  which 
have  established,  that  underwriters  cannot  excuse  themselves 
from  payment  of  loss  by  one  of  the  perils  insured  against, 
on  the  ground  that  the  loss  was  caused  by  the  negligence 
or  unskilfulness  of  the  officers  or  crew  of  the  vessel,  in  the 
performance  of  their  various  duties,  as  navigators,1  although 
they  are  employed  and  paid  by  the  owners.2 

1  See  Copeland  v.  N.  England  Marine  Ins.  Co.  2  Met.  (Mass.)  R.  440. 

2  On  account  of  the  novelty  of  the  question  and  of  the  importance  of 

48 


566  LAW  OF   CARRIEES.  [CH.  XI. 

§  578.  The  Supreme  Court  of  New  York  have  expressed 
their  approbation  of  the  decision  of  the  case  just  considered  ; 
and  the  principle  contended  for  by  the  learned  Chief  Justice 
therein,  is  supported  by  Murray  v.  South  Carolina  Railroad 
Company,1  and  by  Priestly  v.  Fowler,  before  referred  to,  in 
the  English  Court  of  Exchequer.2  The  latter  case  goes 

the  principle  involved,  we  here  insert  the  concluding  portion  of  the  learned 
Judge's  opinion.  "  In  coming  to  the  conclusion  that  the  plaintiff,  in  the 
present  case,  is  not  entitled  to  recover  considering  it  as  in  some  measure  a 
nice  question,  we  would  add  a  caution  against  any  hasty  conclusion  as  to 
the  application  of  this  rule  to  a  case  not  fully  within  the  same  principle. 
It  may  be  varied  and  modified  by  circumstances  not  appearing  in  the  pres- 
ent case,  in  which  it  appears,  that  no  wilful  wrong  or  actual  negligence 
was  imputed  to  the  corporation,  and  where  suitable  means  were  furnished 
and  suitable  persons  employed  to  accomplish  the  object  in  view.  We  are 
far  from  intending  to  say,  that  there  are  no  implied  warranties  and  under- 
takings arising  out  of  the  relation  of  master  and  servant.  Whether,  for 
instance,  the  employer  would  be  responsible  to  an  engineer  for  a  loss 
arising  from  a  defective  or  ill-constructed  steam-engine ;  whether  this 
would  depend  upon  an  implied  warranty  of  its  goodness  and  sufficiency, 
or  upon  the  fact  of  wilful  misconduct,  or  gross  negligence  on  the  part  of 
the  employer,  if  a  natural  person,  or  of  the  superintendent  or  immediate 
representative  and  managing  agent,  in  case  of  an  incorporated  company  — 
are  questions  on  which  we  give  no  opinion.  In  the  present  case,  the  claim 
of  the  plaintiff  is  not  put  on  the  ground  that  the  defendants  did  not  furnish 
a  sufficient  engine,  a  proper  railroad  track,  a  well-constructed  switch,  and 
a  person  of  suitable  skill  and  experience  to  attend  it ;  the  gravamen  of  the 
complaint  is,  that  that  person  was  chargeable  with  negligence  in  not  chang- 
ing the  switch,  in  the  particular  instance,  by  means  of  which  the  accident 
occurred,  by  which  the  plaintiff  sustained  a  severe  loss.  It  ought,  perhaps, 
to  be  stated,  in  justice  to  the  person  to  whom  this  negligence  is  imputed, 
that  the  fact  is  strenuously  denied  by  the  defendants,  and  has  not  been  tried 
by  the  jury.  By  consent  of  the  parties,  this  fact  was  assumed  without 
trial,  in  order  to  take  the  opinion  of  the  whole  Court  upon  the  question  of 
law,  whether,  if  such  was  the  fact,  the  defendants,  under  the  circumstan- 
ces, were  liable.  Upon  this  question,  supposing  the  accident  to  have 
occurred,  and  the  loss  to  have  been  caused  by  the  negligence  of  the  person 
employed  to  attend  to  and  change  the  switch,  in  his  not  doing  so  in  the 
particular  case,  the  Court  are  of  opinion  that  it  is  a  loss  for  which  the 
defendants  are  not  liable,  and  that  the  action  cannot  be  maintained." 

1  Murray  v.  South  Carolina  Railroad  Co.  1  McMullen,  (S.  C.)  R.  385. 

2  Priestly  v.  Fowler,  3  M.  &  Welsh.  R.  1. 


CH.  XI.]  PASSENGER  CARRIERS — WHEN  LIABLE  FOR  AGENTS.  567 

farther  even  than  that  of  the  case  in  Massachusetts,  inasmuch 
as  it  decides  that  an  employer  would  not  be  responsible  to  his 
servant  for  injury  arising  from  an  improper  condition  of  the 
vehicle,  with  the  management  of  which  the  servant  was 
intrusted.  The  declaration  in  this  case  stated,  that  the 
plaintiff  was  a  servant  of  the  defendant ;  that  the  defendant 
had  desired  and  directed  the  plaintiff,  so  being  his  servant, 
to  go  with  certain  goods  of  the  defendant  in  his,  the  defend- 
ant's van,  then  used  by  him,  and  conducted  by  another  of 
his  servants,  in  carrying  goods  for  hire  upon  a  certain  journey  ; 
that  the  plaintiff,  in  pursuance  of  such  direction,  proceeded 
and  was  carried  by  the  said  van  with  the  said  goods  ;  and  it 
became  the  defendant's  duty  to  use  proper  care  that  the 
van  should  be  in  a  proper  state  of  repair,  and  should  not  be 
overloaded ;  nevertheless,  that  the  defendant  did  not  use 
proper  care  that  the  van  should  not  be  overloaded  ;  in  conse- 
quence of  the  neglect  of  which  duty,  the  van  broke  down, 
and  the  plaintiff  was  thrown  on  the  ground,  whereby  his 
thigh  was  fractured.  It  was  held,  that  the  action  was  not 
maintainable.  As  it  was  admitted  that  there  was  no  prece- 
dent for  the  action,  the  Court  considered  it  incumbent  upon 
them  to  decide  the  question  which  was  presented,  upon  gene- 
ral principles ;  and,  in  so  doing,  they  thought  they  were  at 
liberty  to  look  at  the  consequences  of  a  decision,  the  one  way 
or  the  other.  The  consequence  of  holding  the  master  liable, 
in  their  opinion,  would  be  serious  in  the  extreme.  If,  said 
the  Court,  the  owner  of  the  carriage  was  liable  to  his  servant 
for  the  sufficiency  of  the  carriage,  he  is  responsible  for  the 
negligence  of  his  coach-maker,  or  his  harness-maker,  or  his 
coachman.  The  footman,  therefore,  who  rides  behind  the 
carriage,  may  have  an  action  against  his  master  for  a  defect 
in  the  carriage,  owing  to  the  negligence  of  the  coach-maker, 
or  for  a  defect  in  the  harness  arising  from  the  negligence  of 
the  harness-maker,  or  for  drunkenness,  neglect,  or  want  of 
skill  in  the  coachman.  Nor  was  there  any  reason,  in  the 
opinion  of  the  Court,  why  the  principle  should  not  (if  applica- 
ble to  this  class  of  cases)  extend  to  many  others.  The  master, 


568  LAW   OP   CARRIERS.  [CH.  XI. 

for  example,  would  be  liable  to  Ihe  servant  for  the  negligence 
of  the  chamber-maid,  for  putting  him  into  a  damp  bed  ;  for 
that  of  the  upholsterer,  for  sending  in  a  crazy  bedstead  ;  for 
the  negligence  of  the  cook,  in  not  properly  cleaning  the 
copper  vessels  used  in  the  kitchen  ;  of  the  butcher,  in  supply- 
ing the  family  with  meat  of  a  quality  injurious  to  the  health  ; 
of  the  builder,  for  a  defect  in  the  foundation  of  the  house, 
whereby  it  fell,  and  injured  both  the  master  and  the  servant 
by  the  ruins.  The  inconvenience,  not  to  say  the  absurdity 
of  these  consequences,  afforded,  in  the  opinion  of  the  Court, 
a  sufficient  argument  against  the  application  of  the  principle 
which  was  contended  for.  The  servant  is  not  bound  to  risk 
his  safety  in  the  service  of  his  master  ;  and  in  fact,  to  allow 
this  sort  of  action  to  prevail,  would  be  an  encouragement  to 
the  servant  to  omit  that  diligence  and  caution  which  he  is 
in  duty  bound  to  exercise  on  the  behalf  of  his  master,  to 
protect  him  against  the  misconduct  or  negligence  of  others 
who  serve  him  ;  and  which  diligence  and  caution  are  a  much 
better  security  against  any  injury  the  servant  may  sustain 
by  the  negligence  of  others  engaged  under  the  same  master, 
than  any  recourse  against  his  master  for  damages  could  pos- 
sibly afford.1 


1  In  Hutchinson  v.  York,  Newcastle,  and  Berwick  Railway  Company,  the 
defendants  pleaded  that  the  deceased  was  in  their  service  at  the  time  of  his 
death,  and  that  the  accident  was  caused  by  the  negligence  of  a  fellow- 
servant.  The  Court,  on  demurrer,  held,  that  the  plea  was  good,  as  it 
constituted  a  complete  answer  to  the  action  by  setting  out  that  the 
deceased's  death  was  caused  by  the  negligence  of  a  fellow-servant;  and 
in  accordance  with  the  decision  in  Priestly  v.  Fowler,  and  the  demurrer 
was  overruled.  Hutchinson  v.  York,  Newcastle,  and  Berwick  Railway 
Co.,  Co.  of  Exchequer,  Dec.  7,  1849  ;  May  22,  1850,  reported  in  Law 
Reporter,  (Boston)  for  July,  1850,  p.  129.  But  in  Ohio  there  has  been, 
in  a  case  precisely  like  the  case  of  Farwell  v.  Boston  and  Worcester 
Railroad  Co.,  a  refusal  to  apply  the  principle  upon  which  that,  and  the 
case  of  Priestly  v.  Fowler  were  decided.  Stevens  v.  Little  Miami  Rail- 
road Co.  (Hamilton  Common  Pleas,  Ohio,  February  Term,  1850.)  Law 
Reporter  for  June,  1850,  p.  74. 


CH.  XI.]  PASSENGER  CARRIERS — WHEN  LIABLE  FOR  AGENTS.  569 

§  579.  Although  where  a  party  becomes  responsible  to 
the  public  by  undertaking  a  public  duty,  he  is  liable  to  an 
action  and  may,  like  a  carrier,  be  sued  in  case  or  assumpsit, 
even  if  the  injury  has  arisen  from  the  negligence  of  his  ser- 
vant or  agent ;  yet  a  party  who  has  not  been  privy  to  a  con- 
tract entered  into  with  him,  can  maintain  no  action  upon  it. 
A  coach-maker  may  be  liable  for  a  defect  in  a  carriage  to  the 
person  to  whom  he  sells  it,  but  he  is  not  liable  to  a  passenger 
who  has  received  injury  in  consequence  of  such  defect ;  nor 
to  the  driver  of  it  who  receives  an  injury  in  consequence  of 
its  being  defective ;  and  as  the  driver  cannot  sue  the  maker 
of  the  coach  nor  the  person  who  employs  him  to  drive  it,  he 
is  remediless  altogether.1  The  case  of  Winterbottom  v. 
Wright,2  is  a  case  of  this  sort.  In  this  case  A.  contracted 
with  the  Postmaster  General  to  provide  a  mail-coach  to 
convey  mail-bags  along  a  certain  line  of  road  ;  and  B.  and 
others  also  contracted  to  horse  the  coach  along  the  same 
line  ;  and  B.  and  his  co-contractors  hired  C.  to  drive  the 
coach.  It  was  held,  that  C.  could  not  maintain  an  action 
against  A.  for  an  injury  sustained  by  him  while  driving  the 
coach,  by  its  breaking  down  from  latent  defects  in  its  con- 
struction ;  and  the  Judges  were  unanimously  of  this  opinion. 
The  opinion  of  Baron  Rolfe  was  as  follows:  "  The  breach 
of  the  defendant's  duty,  stated  in  the  declaration,  is  his 
omission  to  keep  the  carriage  in  a  safe  condition  ;  and  when 
we  examine  the  mode  in  which  that  duty  is  alleged  to  have 
arisen,  we  find  a  statement  that  the  defendant  took  upon 
himself,  to  wit,  under  and  by  virtue  of  the  said  contract,  the 
sole  and  exclusive  duty,  charge,  care,  and  burden  of  the 
repairs,  state,  and  condition  of  the  said  mail-coach,  and, 
during  all  the  time  aforesaid,  it  had  become  and  was  the  sole 
and  exclusive  duty  of  the  defendant,  to  wit,  under  and  by 
virtue  of  his  said  contract,  to  keep  and  maintain  the  said 

1  See  the  opinion  of  Lord  Abinger,  in  Winterbottom  ».  Wright,  10  M. 
&  Welsh.  R.  109. 
a  Winterbottom  v.  Wright,  ub.  sup. 

48* 


570  LAW    OF   CAKRIERS.  [CH.  XI. 

mail-coach  in  a  fit,  proper,  safe,  and  secure  state  and  con- 
dition. The  duty,  therefore,  is  shown  to  have  arisen  solely 
from  the  contract ;  and  the  fallacy  consists  in  the  use  of  that 
word  duty.  If  a  duty  to  the  Postmaster  General  be  meant, 
that  is  true  ;  but  if  a  duty  to  the  plaintiff  be  intended,  (and 
in  that  sense  the  word  is  evidently  used,)  there  was^none. 
This  is  one  of  those  unfortunate  cases  in  which  there  cer- 
tainly has  been  damnum,  but  it  is  damnum  absque  injuria  ; 
it  is  no  doubt  a  hardship  upon  the  plaintiff  to  be  without  a 
remedy,  but  by  that  consideration  we  ought  not  to  be  influ- 
enced. Hard  cases,  it  has  been  frequently  observed,  are  apt 
to  introduce  bad  law." 

§  579  a.  After  a  railroad  company  has  been  incorporated, 
and  an  accident  has  occurred  to  a  passenger  on  the  line  in 
consequence  of  the  negligence  of  a  servant  of  the  company, 
neither  the  engine  driver  nor  the  superintendent  of  the  traffic 
has  implied  authority  to  contract  with  medical  men  to  assist 
the  injured  person.  Such  authority  may  only  be  inferred 
from  the  conduct  of  the  directors  on  former  occasions,  in  re- 
cognizing similar  contracts  made  by  their  officers ;  or  perhaps 
from  evidence  that  similar  powers  were  usually  exercised  by 
similar  agents  of  similar  companies.1 

§  580.  (13.)  Their  Liability  as  Co-partners.]  That  one 
partner  is  liable  in  tort  for  the  acts  of  his  co-partner,  in  the 
prosecution  of  the  co-partnership  business,  as  well  as  upon 
contracts,  is  well  settled.2  And,  as  an  action  lies  against  a 
master  for  an  injury  done  to  another,  through  the  negligence 
or  unskilfulness  of  his  servant,  while  acting  in  his  employ- 
ment ;  so  partners  are  responsible  in  the  same  way  for  the 
conduct  of  their  servant.3  The  material  question  is,  when 


1  15  Jur.  64,  reported  in  Law  Rep.  (Boston,)  for  May,  1849,  p.  42. 

2  See  opinion  of  Walworth,  Chancellor,  in  Champion  v.  Bostwick,  18 
Wend.  (N.  Y.)  R.  175,  and  also  ante,  %  92-95. 

3  Dwight  v.  Brewster,  1  Pick.  (Mass.)  R.  50. 


CH.  XI.]  PASSENGER  CARRIERS — LIABILITY  AS  CO-PARTNERS.  571 

is  a  carrier  co-partnership  constituted  ?  a  question  which  is  to 
be  of  course  determined  in  reference  to  the  well  established 
principle  of  law,  that  whoever  participates  in  the  profits  of  a 
trade  or  business,  or  has  a  specific  interest  in  the  profits 
themselves,  as  such,  becomes  chargeable  as  a  partner  with 
respect  to  third  persons.  Individuals  become  liable  as  part- 
ners to  third  persons,  either  by  contracting  the  legal  relation 
of  partners  inter  se,  or  by  holding  themselves  out  to  the 
world  as  partners ;  and,  to  speak  correctly,  these  are  the 
only  means  of  incurring  the  liability  in  question.1  The  part- 
nership as  to  third  persons  may  arise,  without  the  intention 
of  the  parties  thereto,  but  by  mere  operation  of  law ;  but 
only  the  actual  intention  will  constitute  a  partnership  inter  se. 
It  seems,  that  a  party  connected  with  a  partnership,  who  re- 
ceives a  compensation  for  his  services  graduated  by  the  profits 
of  the  business,  is  not  a  partner  as  to  third  persons  ;  to  con- 
stitute him  such,  he  must  have  such  an  interest  in  the  profits 
as  will  entitle  him  to  an  account,  and  give  him  a  specific  lien 
or  preference  in  payment  over  other  creditors.3 

§  581.  The  question  as  to  the  liability  of  carrier-partners, 
has  arisen  in  several  instances,  in  England.  "  In  many 
instances,"  says  Mr.  J.  Bayley,  "  one  coach  proprietor  horses 
a  coach  for  one  stage,  another  for  a  second,  and  so  on,  and 
in  some  instances  the  man  who  finds  the  horses,  finds  the 
coachman  also.  Shall  this  take  away  the  liability  of  all  the 
proprietors  ?  Shall  it  be  said,  if  the  coach  does  an  injury 
upon  a  given  stage,  that  the  proprietor  who  finds  the  horses 
and  driver  for  that  stage  shall  alone  be  answerable  ?  The 
horses  and  driver  are  found  by  one  to  do  the  work  of  all ; 
they  are  employed  upon  the  work,  and  for  the  benefit  of  all ; 


1  Gow  on  Part.  14,  15  ;  Collyer  on  Part.  67,  §  78,  (3d  Am.  edit.) 

2  Collyer  on  Part.  ub.  sup.     Opinion  of  Story,  J.,  in  Hazard  v.  Hazard, 
1  Story,  (Cir.  Co.)  R.  371. 

3  See  opinion  of  Walworth,  Chancellor,  in  Champion  v.  Bostwick,  18 
Wend.  (N.  Y.)  R.  175. 


572  LAW   OF   CARRIERS.  [CH.  XI. 

and,  therefore,  all  are  responsible."  1  In  an  action  on  the 
case  to  recover  damages  for  breaking  the  plaintiff's  win- 
dows, in  consequence  of  the  negligence  of  the  driver  of  the 
defendant's  wagon  ;  it  appeared,  that  the  defendant  and  one 
Dyson  were  carriers  from  London  to  Gosport,  and  by  an 
arrangement  between  them,  Dyson  horsed  the  wagon  from 
London  to  Farnham,  and  the  defendant  from  Farnham  to 
Gosport;  and  when  the  injury  happened,  the  wagon  was 
drawn  by  the  horses  and  driven  by  the  servant  of  Dyson, 
with  whose  employment  the  defendant  had  no  concern ;  and 
the  wagon  was  the  property  of  the  defendant.  The  plaintiff, 
it  was  held,  was  entitled  to  recover  on  the  ground,  that  the 
defendant  and  Dyson  were  jointly  entitled  to  the  profits  ;  that 
the  wagon  was  drawn  for  the  benefit  of  the  defendant  as  well 
as  Dyson  ;  and  that  the  driver  was  legally  the  servant  of 
the  defendant,  though  for  some  purposes,  and  as  between 
the  parties  themselves,  he  was  the  servant  of  Dyson  alone.2 
Where  the  plaintiff  and  the  defendant  were  joint  proprietors 
of  a  stage-coach  running  from  A.  to  B.,  the  former  providing 
horses  for  one  part  of  the  road,  and  the  latter  for  the  other, 
and  the  profits  of  each  party  were  calculated  according  to 
the  number  of  miles  his  horses  travelled,  and  the  plaintiff 
received  the  fares  of  the  passengers,  and  gave  a  weekly 
account  of  the  receipts  and  disbursements  belonging  to  the 
coach  of  the  defendant ;  it  Avas  held,  that  the  plaintiff  and 
defendant  were  partners  ;  and  that,  in  an  action  by  the  former 
against  the  latter  upon  a  separate  transaction,  he  could  not 
set  off  a  balance  due  to  him  upon  such  weekly  accounts.3 
Where  the  plaintiff  agreed  with  the  defendant  to  convey  by 
horse  and  cart  the  mail  between  N.  and  B.  at  91.  a  mile 
per  annum,  and  to  pay  his  proportion  of  the  expenses  of  the 
cart,  &c.  ;  the  money  received  for  the  carriage  of  parcels 
to  be  divided  between  the  parties,  and  the  damage  occa- 


1  Laugher  v.  Pointer,  5  B.  &  Cress.  R.  547. 

2  Waland  v.  Elkins,  1  Stark.  R.  272. 

3  Fremont  v.  Coupland,  9  Moore,  R.  319. 


CH.  XI.]  PASSENGER  CARRIERS — LIABILITY  AS  CO-PARTNERS.  573 

sioned  by  loss  of  parcels,  &c.  to  be  borne  in  equal  portions ; 
it  was  held,  that  this  agreement  constituted  a  partnership, 
and  not  a  mere  measure  of  wages  ;  and  that,  consequently, 
the  plaintiff  could  not  sue  the  defendant  for  the  91.  as  stipu- 
lated.1 

§  582.  An  action  on  the  case  was  tried  at  the  Oneida  Cir- 
cuit in  New  York,  which  was  brought  against  the  defendants, 
as  the  owners  of  a  stage-coach,  for  an  injury  sustained  by  the 
wife  of  the  plaintiff  in  being  thrown  from  a  wagon  in  which 
she  was  riding,  in  consequence  of  a  stage-coach  belonging  to 
the  defendants,  through  the  negligence  of  the  driver  thereof, 
coming  in  contact  with  the  wagon  ;  and  the  defendants  pleaded 
the  general  issue.  It  appeared  on  the  trial,  that  the  defend- 
ants ran  a  line  of  stage-coaches  from  Utica  to  Rochester,  and 
that  the  route  was  divided  into  sections  ;  a  section  extending 
from  Utica  to  Vernon  was  occupied  by  one  Dodge,  one  of 
the  defendants ;  another  section  extending  west,  was  occu- 
pied by  one  Ewers  and  others ;  and  the  remainder  of  the 
route  by  Champion  and  Bissell.  The  business  was  con- 
ducted, and  the  proceeds  of  the  concern  were  divided  thus  : 
The  occupants  of  each  section  provided  their  own  carriages 
and  horses,  employed  their  own  drivers,  and  paid  the  ex- 
penses of  their  separate  sections  of  the  route,  except  the  tolls 
at  turnpike  gates ;  and  the  moneys  received  as  the  fare  of 
passengers,  after  deducting  such  tolls,  were  divided  among 
the  occupants  of  the  several  sections,  in  proportion  to  the 
number  of  miles  of  the  route  run  by  each.  The  injury  in 
question  occurred  on  the  section  of  the  route  occupied  by 
Dodge,  the  stage-coach  which  was  driven  against  the  wagon 
was  owned  by  him,  and  the  driver  of  it  was  employed  by 
him.  The  Judge  charged  the  jury,  that,  upon  these  facts, 
the  defendants  must  be  considered  partners,  and  that  they 
were  all  responsible  for  any  injury  occasioned  by  the  negli- 
gence of  either  of  the  drivers  of  the  coaches  on  either  section 

1  Green  v.  Beesly,  2  Bing.  New  R.  108. 


574  LAW  OF   CARRIERS.  [CH.  XI. 

of  the  route,  as  each  driver  was  the  servant  of  all  the  indi- 
viduals connected  in  the  business  ;  that  the  fact,  that  the  oc- 
cupants of  each  section  employed  their  own  drivers  and  paid 
the  expenses  of  their  own  section,  did  not  discharge  them 
from  liability  ;  that  a  right  to  a  division  of  the  fare  received 
from  passengers,  after  paying  the  tolls,  in  proportion  to  the 
distance  run  by  the  occupants  of  the  respective  sections,  was 
an  interest  in  the  profits,  constituting  them  partners,  and  ren- 
dering them  liable  in  the  action  against  them.  The  defend- 
ants, on  a  bill  of  exceptions  to  this  charge,  moved  for  a  new 
trial,  which  in  the  Supreme  Court  was  denied.  Nelson,  J., 
in  giving  the  opinion  of  the  Court,  said  :  "  Each  sharing  in 
the  profits  of  the  whole  route,  and  of  course  of  each  section 
of  it,  it  is  not  only  just,  but  in  accordance  with  well  settled 
principles  of  law,  to  hold  all  responsible  for  the  faithful  dis- 
charge of  their  duty  ;  and  to  respond  in  damages  for  any 
injury  which  happens  from  the  negligence  or  unskilfulness  of 
any  of  the  proprietors  or  their  servants.  It  is  just  to  the 
public  and  to  themselves.  The  former  have  a  right  to  claim 
the  responsibility  of  all  who  profit  directly  by  their  patronage  ; 
and,  as  to  the  latter,  the  loss  should  be  borne  by  all.  The 
drivers  themselves  are  generally  irresponsible  men,  and  so 
frequently  are  single  proprietors.  The  public  safety  and  con- 
venience will  depend  essentially  upon  the  application  of  the 
rule  of  joint  responsibility  of  all  the  proprietors,  who  will 
then  see  to  it  that  all  their  co-partners,  and  all  who  are  em- 
ployed in  the  concern,  are  trustworthy."  The  judgment  was 
affirmed  by  the  Court  of  Errors.1 

§  583.  A  line  of  stage-coaches,  in  Massachusetts,  was  run 
by  two  persons  from  Barre  through  Holden  to  Worcester 
and  back  ;  and  it  was  agreed  that  one  of  them  should  fur- 
nish and  maintain  horses  and  coaches,  and  receive  the 
money  paid  for  the  transportation  of  passengers  between 

i  Bostwick  v.  Champion,  11  Wend.  (N.  Y.)  R.  571,  and  S.  C.,  in 
error,  18  Wend.  (N.  Y.)  R.  175. 


CH.  XI.]  PASSENGER  CARRIERS — LIABILITY  AS  CO-PARTNERS.  575 

Holden  and  Worcester,  and  that  the  other  should  do  the  like 
between  Holden  and  Barre.  They  employed  a  man  to  drive 
all  the  way  from  Barre  to  Worcester  and  back,  at  a  certain 
sum  per  month  and  perquisites ;  and  money  was  delivered 
by  the  plaintiff  to  this  driver  to  carry  from  Barre  to  Wor- 
cester ;  but  the  driver  absconded  without  delivering  it.  It 
was  held,  that  the  driver  was  the  servant  of  the  two  persons 
jointly,  and  that  they  were  jointly  liable  to  the  plaintiff  for 
the  money.  The  Court,  in  giving  their  opinion,  said :  "  If 
the  driver  was  the  servant  of  one  of  the  defendants  at  one 
end  of  the  line,  and  of  the  other  at  the  other,  there  were 
two  contracts ;  and  this  brings  us  to  the  general  question, 
whether  the  defendants  were  so  connected  as  to  be  jointly 
liable  for  his  acts.  It  is  not  easy  to  decide,  whether  they 
were  interested  in  the  whole  line,  or  each  at  one  end  only. 
It  should  seem  in  the  outset,  that  there  was  but  one  enter- 
prise, namely,  to  run  a  line  of  stage-coaches  from  Barre  and 
Worcester  and  back.  The  contract  between  the  defendants 
was  not  a  stipulation  that  one  would  run  coaches  one  part 
of  the  way,  if  the  other  would  the  other  part. ;  but  it  seems 
to  have  been  a  joint  undertaking,  and  the  advertisement 
was  of  a  stage-coach  running  from  Worcester  *and  Barre 
and  back.  Each  of  the  defendants  was  at  the  expense  of 
supporting  the  line  at  one  end  of  the  route ;  and  if  the 
arrangement  had  been  to  divide  the  profits  equally  or  pro- 
portionably,  there  would  have  been  a  partnership  beyond 
any  doubt.  Does  it  make  a  difference  that  they  divided  the 
profits  according  as  they  were  earned  at  each  end  ?  The 
question  is  not  without  difficulty,  but  on  the  whole  we  think 
they  must  be  considered  so  far  jointly  concerned,  as  to  be 
jointly  liable  for  the  driver's  act  in  this  particular  instance. 
They  jointly  hired  him,  and  for  a  joint  object ;  and  the 
well  managing  of  the  business  at  one  end  of  the  line,  was 
of  importance  to  the  other." 1 


Cobb  v.  Abbott,  14  Pick.  (M«M.)  R.  289. 


576  LAW    OF    CARRIERS.  [CH.  XI. 

§  584.  A.  B.  and  C.  and  D.  and  E.  agreed  to  run  a  line 
of  stage-coaches  from  Albany  to  Utica ;  each  of  the  three 
parties  was  to  run  a  separate  portion  of  the  road,  and  to 
furnish  his  own  horses  and  carriages,  at  his  own  expense 
and  risk  ;  but  extra  expenses  for  extra  carriages  were  to  be 
paid  jointly.  A.  B.  and  D.  met,  and  the  accounts  between 
the  parties  were  examined  and  adjusted,  when  there  was 
found  a  balance  due  from  D.  and  E.  to  B.  and  C.  for  moneys 
received  at  Albany.  It  appearing  that  D.  and  E.  being 
jointly  concerned  in  running  their  part  of  the  line,  and  being 
generally  understood  to  be  partners,  E.  was  held  to  be  jointly 
chargeable  for  the  money  received  by  D.,  and  for  his  acts ; 
and  that  an  action  for  money  had  and  received  would  lie 
against  D.  and  E.  to  recover  the  balance  so  found  to  be  due ; 
and  there  was  no  such  partnership'  existing  between  the 
five  persons  concerned,  as  would  prevent  such  a  suit.  The 
articles  of  agreement  existing  between  all  the  five  persons 
concerned  in  running  the  stage,  did  not  at  all  interfere  with 
the  suit.  The  parties  had  agreed  with  each  other  to  run  a 
stage  from  Albany  to  Utica,  but  with  distinct  and  separate 
interests  and  rights  ;  and  each  party  had  his  distinct  share 
of  the  roadf1 

§  585.  The  facts  that  several  persons  associate  together  to 
run  a  line  of  stage-coaches,  that  they  have  a  general  meeting, 
and  that  debts  are  contracted  on  account  of  the  association 
by  only  some  of  the  members  of  it,  are  not  sufficient  to 
prove  a  partnership.2  And  the  fact  that  several  persons 
actually  subscribe  an  agreement  to  pay  money  for  the  pur- 
pose of  establishing  a  line  of  stage-coaches  —  the  instrument 
containing  a  stipulation  that  no  subscriber  should  be  liable 
to  pay  if  he  chose  to  abandon  his  share,  and  that  a  refusal 
to  pay  should  operate  as  an  abandonment  of  his  share  — 


1  Wetmore  v.  Baker,  9  Johns.  (N.  Y.)  R.  306. 

2  Chandler  v.  Brainard,  14  Pick.  (Mass.)  R.  285. 


CH.  XI.]  PASSENGER  CARRIEKS — LIABILITY  AS  CO-PARTNERS.  577 

does  not  constitute  a  partnership  ;  and  therefore  the  sub- 
scribers who  refuse  to  pay,  cannot  be  charged  as  partners 
by  those  who  have  paid  more  than  their  proportion.  In 
fact,  it  is  difficult  to  imagine  a  contract  to  be  more  cautiously 
framed  to  avoid  a  partnership  than  this.1  If  a  partnership 
actually  formed  for  the  purpose  of  running  stage-coaches, 
issue  to  its  members  certificates  of  their  shares  in  the  joint 
stock,  containing  a  provision,  that  the  shares  shall  not  be 
transferred  without  the  consent  of  the  directors,  the  person 
to  whom  a  share  has  been  assigned  without  such  consent, 
cannot  allege  himself  to  be  a  partner,  and  compel  the  com- 
pany to  account.  It  is  indeed  settled,  as  a  general  prin- 
ciple, that  a  co-partnership  cannot  be  compelled  to  receive  a 
stranger  into  their  league,  as  it  is  founded  in  personal  confi- 
dence.2 Still,  if  it  appears  from  the  course  of  business  that 
a  special  provision,  like  the  one  mentioned,  has  by  express 
or  tacit  consent,  been  disregarded,  assignments  and  transfers 
will  be  held  valid,  as  regards  creditors,  although  not  made 
in  compliance  with  it.3 

§  586.  Carriers  are  sometimes  engaged  in  the  transporta- 
tion of  what  are  called  "  consignee  passengers,"  that  is, 
passengers  who  are  to  be  carried  to  a  certain  terminus,  and 
then  to  be  delivered  to  other  carriers.  There  were  certain 
persons  engaged  as  such  carriers  between  the  city  of  New 
York  and  various  places  at  the  "West,  by  the  way  of  the 
Hudson  River,  and  the  canals  and  lakes,  who  entered  into 
an  arrangement  with  other  carriers,  by  which  it  was  mu- 
tually agreed,  that  the  former  should  deliver  up  their  freight 
and  passengers  to  the  latter  at  Albany,  and  their  down 
freight  at  Schenectady,  the  termini  of  the  railroad  ;  and 
that  the  latter  should  transport  the  freight  and  passengers 
over  their  road.  The  contract  in  respect  to  the  price  for 


1  Clark  v.  Reed,  11  Pick.  (Mass.)  R.  446. 

2  Kingman  v.  Spurr,  7  Pick.  (Mass.)  R.  234. 

3  Rainhard  v.  Hovey,  13  Ohio  R.  300. 

49 


578  LAW    OF   CARRIERS.  [CH.  XI. 

transportation,  made  between  the  owners  of  the  goods  and 
the  party  of  the  first  part,  was  to  govern  the  compensation 
of  the  party  of  the  second  part,  and  they  were  to  be  paid 
in  the  proportion  that  thirty  miles  bore  to  the  whole  distance 
the  goods  "  were  transported  on  the  canal ; "  or  rather  in 
proportion  that  thirty  miles  bore  to  the  whole  distance  the 
goods  would  have  been  transported  on  the  canal,  had  the 
party  of  the  first  part  run  their  boats  between  Albany  and 
Schenectady,  instead  of  employing  the  party  of  the  second 
part  to  carry  between  those  places.  The  party  of  the  second 
part  brought  an  action  of  assumpsit  to  recover  of  the  party 
of  the  first  part  for  the  transportation  of  freight  and  con- 
signee passengers  over  their  railroad  for  the  party  of  the 
first  part  in  the  year  1839  ;  and  the  defence  was,  that  the 
plaintiffs  and  defendants  were  partners  in  the  transaction  in 
question,  and  consequently  without  a  balance  struck  and 
promise  of  payment,  the  plaintiffs  could  not  sue  at  law. 
Bronson,  J.,  who  delivered  the  opinion  of  the  Court,  was 
unable  to  see  that  this  made  out  a  partnership  between  the 
parlies,  there  being  no  community  of  interest,  or  division  of 
profits  of  a  joint  concern  between  the  parties.  He  said  : 
"The  contracts  for  transportation  were  all  made  between 
the  defendants  and  the  owners  of  the  goods.  The  plaintiffs 
had  no  concern,  either  for  profit  or  loss,  with  the  river, 
canal,  or  lake  transportation.  There  was  no  general  account 
of  profit  and  loss  upon  the  whole  business  to  be  adjusted 
between  the  parties.  One  party  might  make  a  profit  by  the 
business,  while  it  proved  ruinous  to  the  other.  In  short,  the 
case  comes  to  this  :  The  defendants  having  undertaken  to 
perform  work  and  labor  for  third  persons,  employ  the  rail- 
road company  to  do  a  part  of  the  work  for  them,  agreeing 
that  they  will  pay  the  company  for  its  services  the  same 
price  in  proportion  to  distance  which  the  defendants  them- 
selves are  to  receive.  I  do  not  see  how  this  makes  out  a 
partnership,  either  as  between  the  parties  themselves,  or  in 
relation  to  third  persons."  One  fact  in  the  case  was  stated 
by  the  learned  Judge  to  be,  that  the  company  was  to  furnish 


CH.  XI.]  PASSENGER  CARRIERS — LIABILITY  AS  CO-PARTNERS.  579 

"  warehouse  facilities,"  and  pay  a  portion  of  the  expense  of 
offices  at  each  end  of  the  road.  But  this,  in  his  opinion, 
did  not  alter  the  nature  of  the  contract.1 

§  587.  A  ship-master  having  agreed  to  take  the  defend- 
ant's vessel  for  the  purpose  of  obtaining  employment  in  the 
freighting  business,  engaged  to  victual  her  and  man  her,  and 
pay  half  of  all  charges,  pilotage,  &e.,  and  the  defendant 
engaged  to  pay  the  other  half,  together  with  eight  dollars 
per  month  for  one  man's  wages,  and  to  put  the  vessel  in 
sufficient  order  for  business ;  and  all  money  so  stocked  in 
the  vessel,  whether  for  freight  or  passage  or  whatever,  was 
to  be  equally  divided  between  the  master  and  the  defendant, 
each  party  accounting  for  the  above ;  it  was  held,  that  the 
master  was  owner  pro  hoc  vice;  that  the  contract  did  not 
make  him  and  the  defendant  partners ;  and  that  the  defend- 
ant was  not  answerable  to  a  shipper  of  goods  which  had 
not  been  delivered  according  to  the  bill  of  lading.2  Indeed 

1  Mohawk  and  Hudson  Railroad  Co.  v.  Niles,  &c.  3  Hill,  (N.  Y.)  R. 
162.     A.  B.  and  C.  were  common  carriers  from  L.  to  F.,  a  separate  por- 
tion of  the  road  being  allotted  to  each  ;  and  it  having  heen  stipulated,  also, 
that  no  partnership  should  exist  between  them.     A.  for  himself,  and  the 
other  parties,  agreed  with  the  Mint  to  carry  coin  from  L.  to  F.,  and  after- 
wards makes  another  agreement  with  the  Mint  to  carry  other  coin  to  places 
on  the  road.     It  was  held,  that  the  parties  were  entitled  to  share  in  the 
profits  of  this  agreement.     Russell  v.  Anstwick,  1  Sim.  Ch.  R.  54.     In 
Massachusetts  it  is  provided  by  statute,  that  when  railroads  unite,  the 
corporations  may  contract  with  each  other  as  to  transportation.     Any  rail- 
road corporation,  already,  or  which  may  be,  created  in  that  State,  and  any 
other  adjoining  State,  is  authorized  to  contract  with   any  other  railroad 
corporation  created  as  aforesaid,  whose  road  enters  upon  or  is  connected 
with  the  road  of  the  corporation  so  contracting,  to  do  and  perform  all  the 
transportation  of  persons  and  freight  upon  and  over  said  railroad,  upon 
Buch  terms  and  conditions  as  may  be  mutually  agreed  by  the  parties- 
Supp.  to  Rev.  Laws  of  Mass.  c.  99,  s.  1,  p.  70. 

2  Culler  v.  Winsor,  6  Pick.  (Mass.)  R.  335.     See  Boardman  v.  Keeler, 
2  Verm.  R.  297 ;  Harding  v.  Foxcroft,  16  Greenl.  (Me.)  R.  76.     The 
master  and  crew  of  a  ship  engaged  in  a  whaling  voyage,  who  are  to 
receive,  in  lieu  of  wages,  a  proportion  of  the  net  proceeds  of  the  oil  which 
shall  be  obtained,  are  not  partners  with  the  owners  of  the  ship.     Baxter 
v.  Rodman,  3  Pick.  (Mass.)  R.  345. 


580  LAW   OF   CARRIERS.  [oil.  XI. 

a  partnership,  between  the  defendant  and  the  ship-master 
in  the  employment  and  earnings  of  the  vessel,  could  not  be 
predicated  on  the  above  facts,  any  more  than  in  all  the  cases 
in  which  the  charter  of  a  vessel  was  agreed  to  be  paid  by  a 
portion  of  the  earnings. 

§  588.  Ferrymen,  we  have  seen,  are  common  carriers,1 
and  the  question  may  sometimes  arise  whether  the  owner  of 
a  ferry  is  solely  liable  for  losses  and  injuries  from  negligence 
in  the  management  of  the  ferry,  or  whether  he  is  liable  in 
connection  with  another  person  with  whom  he  has  made 
arrangements  in  respect  to  the  management  or  use  of  the 
ferry.  B.,  the  owner  of  a  ferry,  leased  it  to  F.  for  two 
years,  in  consideration  of  $1000  paid  him  by  F.  in  cash  ; 
and  it  was  agreed  between  the  parties,  that,  if  the  net  profits 
of  the  ferry  did  not  yield  F.  $2000  dollars  within  two  years, 
F.  should  hold  over  the  term  until  the  profits  did  yield  that 
sum.  It  was  further  stipulated,  that  if  the  profits  gave  more 
than  $2000  within  the  two  years,  the  surplus  should  be 
equally  divided  between  them.  It  was  held,  upon  these 
facts,  that  the  agreement  did  not  constitute  a  partnership  in 
the  ferry  between  B.  and  F. ;  and  that  B.  was  not  liable  for 
losses,  by  negligence  at  the  ferry,  during  the  term  of  F.'s 
tenancy  thereof.2 

§  589.  Several  persons  acting  in  connection  as  passenger 
carriers,  may,  as  among  themselves,  by  the  terms  of  their 
agreement  in  relation  to  one  another,  not  be  partners ;  and 
they  may  thus  be  liable  to  each  other  the  same  as  if  their 
interests  were  several.  But  this  private  arrangement  can  in 
no  way  vary  the  rights  of  third  persons  or  the  public,  legally 
flowing  from  the  general  arrangement,  under  which  they 
hold  themselves  out  as  jointly  interested,  and  by  which  they 
participate  in  the  profits  of  the  concern.  They  would  be 

1  Ante,  §  82,  130. 

2  Boyer  v.  Anderson,  2  Leigh,  (Va.)  R.  550  ;  and  see  ante,  $  147. 


CH.  XI.]         PASSENGER   CARRIERS  —  ACTIONS  AGAINST.  581 

still  liable  for  an  injury  received  by  a  passenger,  through  the 
negligence  of  their  driver.1 

§590.  (14.)  Actions  against.]  In  considering  the  different 
duties  of  passenger  carriers,  the  first  which  received  our 
attention  was  their  duty  to  receive  all  persons  as  passengers 
who  offer  to  become  such.  This  duty  results  from  their  setting 
themselves  up,  like  common  carriers  of  goods  and  merchan- 
dise, for  a  public  and  common  employment  for  hire  ;  and  a 
breach  of  it  is  a  breach  of  the  law  for  which  an  action  lies.2 
The  rule  is,  that  if  no  place  be  taken  in  the  vehicle,  and  the 
carrier  refuses  to  carry  a  person,  with  his  baggage,  who  offers 
himself  as  a  passenger,  provided  he  has  room,  and  the  person 
so  offering  conforms  to  the  reasonable  regulations  of  the  car- 
rier, the  declaration  should  be  in  case.  The  action  was  case 
in  Bennett  v.  Dutton,3  and  the  declaration  alleged,  that  the 
defendant  was  part  owner,  and  driver,  of  a  public  stage-coach 
from  Nashua  to  Amherst,  and  Francestown  ;  that  on  the  31st 
of  January,  1837,  the  plaintiff  applied  to  him  to  be  received 
into  his  coach,  at  Nashua,  and  to  be  conveyed  from  thence 
to  Amherst,  offering  to  pay  the  customary  fare ;  and  that  the 
defendant,  although  there  was  room  in  the  coach,  refused  to 
receive  the  plaintiff.  It  is  clearly  necessary,  that  it  should  be 
averred  in  the  declaration,  that  the  plaintiff  was -willing-  and 
ready  to  pay  the  defendant  the  amount  which  the  defendant 
was  legally  entitled  to  receive  for  the  receipt  and  carriage  of 
the  plaintiff  and  his  baggage ;  though  it  is  not  necessary  that 
he  should  make  an  absolute  tender  ;  and  the  general  allega- 
tions in  the  declaration  would  be  similar  to  those  of  the 
declaration  in  an  action  against  a  common  carrier  of  goods, 
for  refusing  to  receive  and  carry  them.4 

1  See  opinion  of  Nelson,  J.,  in  Bostwick  v.  Champion,  11  Wend.  (N.  Y.) 
R.  572. 

2  See  the  subject  fully  considered,  ante,  $  524-531. 

3  Bennett  v.  Dutton,  10  N.  Hamp.  R.  481.     The  action  was  case  in 
Jencks  v.  Coleraan,  2  Sumn.  (Cir.  Co.)  R.  221. 

4  .For  the  form  of  the  declaration  for  refusing  to  receive  goods,  see  ante, 

49* 


582  LAW   OF   CARRIERS.  [CH.  XI. 

§  591.  A  passenger  in  a  public  conveyance  \vho  receives 
an  injury  while  travelling,  in  consequence  of  the  negligence 
or  misconduct  of  the  proprietor  or  of  his  driver  or  servant, 
may  at  his  election  sue  the  proprietor  in  assumpsit  on  the 
implied  contract  for  a  safe  conveyance,  or  in  case  as  for  the 
tort.1  And,  as  in  the  instance  of  carriers  of  goods  and  mer- 
chandise, if  the  plaintiff  adopts  the  former  form  of  action,  to 
entitle  him  to  recover,  he  must  prove  the  liability  of  all  the 
parties  sued  ; 2  but  if  he  adopts  the  latter,  he  may  recover 
against  any  of  the  defendants  who  are  liable.3  Bretherton 
v.  Wood  was  an  action  on  the  case  against  ten  defendants  as 
the  proprietors  of  a  coach,  for  injuries  sustained  by  the  plain- 
tiff, a  passenger,  in  consequence  of  negligence  in  driving,  and 
the  jury  found  a  verdict  against  eight  of  the  defendants,  and 
in  favor  of  the  other  two  ;  and  judgment  was  entered  accord- 
ingly.4 On  the  other  hand,  if  a  declaration  be  even  framed 
in  case,  yet  if  it  be  founded  on  contract,  judgment  cannot  be 
given  for  some  defendants,  and  against  others.  Such  was  the 
case  of  Walcott  v.  Canfield,6  where  the  defendants  were  the 
proprietors  of  a  line  of  stage-coaches,  and  were  sued  for  not 
performing  their  undertaking,  in  form  in  case  ;  but  the  suit 
being  in  substance  on  the  contract,  the  Court  held,  that  the 
plaintiff  must,  in  every  essential  particular,  prove  the  contract 
as  he  had  alleged  it.6 

§  592.  The  plaintiff  can  recover  only  on  the  grounds  stated 

$  418,  and  that  if  an  offer  to  pay  is  proved,  it  need  not  amount  to  what  is 
strictly  a  legal  tender.     Ib. 

1  Knight  v.  Quarles,  3  B.  &  Bing.  R.  102. 

2  Ante,  $  422,  et  seq. 

3  M'Call  v.  Forsyth,  4  Watts  &  S.  (Penn.)  R.  179 ;  ante,  §  435,  el  seq. 

4  Bretherton  v.  Wood,  3  Bro.  &  Bing.  R.  54. 

5  Walcott  v.  Canfield,  3  Conn.  R.  194,  and  cited  more  fully  ante,  §  438. 

6  But,  on  the  subject  of  mis-joinder  and  non-joinder  of  parties  in  actions 
on  the  case,  and  in  actions  of  assumpsit,  and  as  to  the  distinctive  character 
of  the  declaration,  whether  it  be,  in  law,  in  case,  or  assumpsit,  and  as  to 
the  pleadings,  evidence,  &c.  in  the  same,  we  refer  the  reader  to  the 
preceding  Chapter  X. 


CH.  XI.]      PASSENGER  CARRIERS  —  ACTIONS   AGAINST.  583 

in  his  declaration  ;  and  hence  in  an  action  by  a  passenger  for 
an  injury  done  to  him  by  the  overturning  of  a  stage-coach, 
if  the  declaration  states  that  the  servants  of  the  defendant 
negligently  "  drove,  conducted,  and  managed  the  coach,"  the 
plaintiff  cannot  recover,  if  the  negligence  was  in  sending  out 
an  insufficient  coach.1  So  if  the  declaration  charges  the 
injury  to  the  passenger  to  the  want  of  skill  and  care  of  the 
driver,  and  not  to  any  deficiency  in  the  coach,  harness,  or 
horses,  proof  that  the  lines  were  broken,  can  give  no  right 
of  recovery  to  the  plaintiff.2 

§  593.  One  of  the  reasons,  as  there  has  before  been  occa- 


1  Per  Littledale,  J.,  Mayor  t>.  Humphries,  1  C.  &  Payne,  R.  251. 

2  McKinney  ».  Niel,  1  McLean,  (Cir.  Co.)  R.  540.     Mr.  Greenleaf 
(2  Greenl.  Ev.  $  222)  conceives  the  following  count  in  assumpsit  against 
a  passenger  carrier  for  bad  management  of  a  sufficient  coach,  would  be 

good.     "For  that  the  said  (defendant)  on was  the  proprietor  of  a 

coach  for  the  carriage  of  passengers  with  their  luggage  between and 

for  hire  and  reward ;  and  thereupon,  on  the  same  day,  in  considera- 
tion that  the  plaintiff,  at  the  request  of  the  said  (defendant ,)  would  engage 
and  take  a  seat  and  place  in  said  coach,  to  be  conveyed  therein  from  said 

to for  a  reasonable  hire  and  reward  to  be  paid  to  him  by  the 

plaintiff,  the  said   (defendant)   undertook  and  promised   the  plaintiff  to 

carry  and  convey  him  in  said  coach,  from to ,  with  all  due  care, 

diligence  and  skill.  (*)     And  the  plaintiff  avers  that,  confiding  in  the  said 
undertaking,  he  thereupon  engaged  and  took  a  seat  in  said  coach  and 
became  a  passenger  therein,  to  be  conveyed  as  aforesaid,  for  such  hire  and 
reward  to  be  paid  by  him  to  the  said  (defendant).    But  the  said  (defendant) 
did  not  use  due  care,  diligence,  and  skill,  in  carrying  and  conveying  the 
plaintiff  as  aforesaid ;  but  on  the  contrary  so  overloaded,  and  so  negli- 
gently and  unskilfully  conducted,  drove,  and  managed  said  coach,  that  it 
was  overturned  ;  by  means  whereof  the  plaintiff  was  grievously  bruised 
and  hurt,  [here  state  any  other  special  injuries]  and  was  sick  and  disabled 
for  a  long  time,  and  was  put  to  great  expense  for  nursing,  medicines,  and 
medical  aid." 

If  the  injury  arose  from  insufficiency  in  the  coach,  or  horses,  insert 
at  (*)  as  follows  :  —  "  and  that  the  said  coach  was  sufficiently  stanch  and 
strong,  and  that  the  horses  drawing  the  same  were  and  should  be  well 
broken,  and  manageable,  and  of  competent  strength  ;  "  —  and  assign  the 
breach  accordingly.  See  ante,  $  435,  n.  3. 


584  LAW   OF   CARRIERS.  [cH.  XI. 

sion  to  state,  why  the  remedy  by  the  action  of  assnmpsit 
against  common  carriers  of  goods  is  preferable  to  that  of  an 
action  on  the  case,  is,  that  it  survives  against  the  executor  or 
administrator.1  The  principle  laid  down  by  Lord  Mansfield, 
in  Hambly  v.  Trott,2  is,  that  "  where  the  cause  of  action  is 
money  due  on  a  contract  to  be  performed,  gain  or  acquisition 
to  the  testator,  by  the  work  and  labor  or  property  of  another, 
or  a  promise  by  the  testator  express  or  implied  ;  when  these 
are  causes  of  action,  the  action  survives  against  the  executor." 
The  distinction  clearly  is  between  causes  of  action  which 
affect  the  estate,  and  those  which  affect  the  person  only  ;  the 
former  survive  for  or  against  the  executor  or  administrator, 
and  the  latter  die  with  the  person.3  The  general  rule  of  law 
is  actio  personalis  moritur  cum  persona,  —  a  personal  right  of 
action  dies  with  the  person  ;  tinder  whieh  rule  are  included 
all  actions  for  injuries  merely  personal.  Executors  and 
administrators  are  the  representatives  of  the  temporal  property, 
that  is,  the  debts  and  goods  of  the  deceased,  but  not  of  their 
wrongs,  except  where  those  wrongs  operate  to  the  temporal 
injury  of  their  personal  estate.  But  in  that  case,  the  special 
damage  must  be  stated  on  the  record,  inasmuch  as  the  Court 
cannot  intend  it.  Damage  subsisting  in  the  mere  personal 
suffering  of  the  testator,  and  all  injuries  affecting  his  life  or 
health,  are  undoubtedly  breaches  of  the  implied  promise  by 
the  persons  employed  to  exhibit  a  proper  portion  of  care  and 
skill ;  but  there  seems  to  be  no  authority  to  sustain  any 
attempt  on  the  part  of  an  executor  or  administrator  to  main- 
tain an  action  in  such  case.4  An  administrator  cannot  have 
an  action  for  breach  of  promise  of  marriage  to  the  intestate, 
where  no  special  damage  is  alleged.5  Neither  will  an  action 

1  Ante,  §  435. 

2  Hambly  v.  Trott,  Cowp.  R.  372. 

3  Per  Wilde,  J.,  in  Stebbins  v.  Palmer,  1  Pick.  (Mass.)  R.  71 ;  Orne 
v.  Broughton,  10  Bing.  R.  353  ;  Grace  t>.  Grace,  2  M.  &  Welsh.  R.  190. 

4  See  the  judgment  of  Lord  Ellenborough,  in  Chamberlain  v.  William- 
son, 2  M.  &  Selw.  R.  408. 

5  Chamberlain,  &c.  vb.  sup. 


CH.  XI.]        PASSENGER    CARRIERS  —  ACTIONS   AGAINST.  585 

for  a  breach  of  promise  of  marriage,  where  no  special  dam- 
age is  alleged,  survive  against  the  administrator  or  executor 
of  the  promisor.1 

§  594.  But  where  the  damage  done  to  the  personal  estate 
of  the  testator  or  intestate,  or  to  the  estate  of  another  by  the 
testator  or  intestate,  in  his  lifetime,  can  be  staled  on  the 
record,  that  involves  a  case  different  from  the  two  cases  just 
above  stated.  A  plaintiff,  as  administrator,  declared  that 
his  intestate  employed  the  defendant  as  his  attorney  to  inves- 
tigate the  title  to  certain  premises  which  the  intestate  had 
contracted  to  purchase,  and  that  the  defendant  undertook  to 
do  so,  and  assigned  as  a  breach  of  the  defendant's  promise, 
that  he  caused  the  intestate  to  accept  a  defective  title,  where- 
by the  latter  was  wholly  unable  to  dispose  of  the  premises 
in  question  during  his  life  ;  and  the  count  then  went  on  to 
allege  special  damage  to  the  deceased's  personal  estate.  To 
this  declaration  there  was  a  demurrer  on  the  part  of  the 
defendant,  in  support  of  which  it  was  attempted  to  be 
argued,  that  the  action,  though  in  form  ex  contractu,  was  in 
substance  ex  delicto,2  the  breach  of  promise  being  no  more 
than  a  tort  arising  out  of  a  neglect  of  duty.  The  Court 
were,  however,  unanimous  in  their  opinion,  that  there  was 
no  ground  for  the  demurrer,  an  express  promise  being 
alleged,  a  breach  of  it  in  the  lifetime  of  the  testator,  and  an 
injury  to  his  personal  properly  ;  the  truth  of  which  allegation 
was  admitted  by  the  demurrer  ;  that  it  made  no  difference 
in  the  case,  whether  the  promise  was  express  or  implied, 
the  whole  transaction  resting  in  contract  ;  that  though  per- 
haps the  intestate  might  have  brought  case  or  assumpsit  at 
his  election,  assumpsit  being  the  only  remedy  for  the  admin- 
istrator, it  was  necessary  that  the  action  should  be  main- 
tained, or  Ihe  defendant  might  escape  out  of  the  consequences 
of  his  misconduct,  and  the  intestate's  estate  suffer  an  irre- 


1  Stebbins  v.  Palmer,  1  Pick.  (Mass.)  R.  71. 

2  See  ante,  $436-440. 


586  LAW   OF   CARRIERS.  [CH.  XI. 

parable  injury.  It  was  further  observed,  by  the  Court,  that 
if  a  man  contracted  for  a  safe  conveyance  by  a  coach,  and 
sustained  an  injury  by  a  fall,  by  which  his  means  of  im- 
proving his  personal  property  were  destroyed,  and  that 
property  in  consequence  injured,  though  it  was  clear  that  in 
his  lifetime  he  might,  at  his  election,  sue  the  coach  proprietor 
in  tort  or  in  contract,  it  could  not  be  doubted  that  his  execu- 
tor might  sue  in  assumpsit  for  the  consequence  of  the  coach 
proprietor's  breach  of  contract.1 

§  595.  It  would  seem  rather  clear  from  the  above  au- 
thorities, that  an  injury  which  affects  the  health  or  life  of 
deceased  persons,  and  which  was  occasioned  by  the  negli- 
gence or  unskilfulness  of  a  passenger  carrier,  although  it  is  a 
breach  of  the  implied  promise  by  such  carrier  to  exhibit  a 
proper  degree  of  care  and  skill,  and  if  stated  and  proved  to 
be  detrimental  to  the  estate  of  the  deceased,  is  the  subject 
of  an  action  by  his  executor  :  yet,  as  importing  a  mere  per- 
sonal injury,  it  is  not  actionable  save  by  the  testator  himself. 
And  so  of  a  suit  against  an  executor  of  the  party  committing 
the  injury,  or  of  the  promisor  ;  if  no  special  damage  to  the 
estate  of  the  person  injured  is  alleged  and  proved,  an  action 
does  not  survive.2 

§  596.  The  question  then  arises,  —  what  shall  be  consid- 
ered a  damage  to  the  estate  of  a  person,  in  cases  like  the 
above-mentioned  ?  In  Ford  v.  Monroe,  in  New  York,3  the 


1  Knight  r.  Quarles,  2  Bro.  &  Bing.  R.  102. 

2  The  personal  representatives  are  liable,  as  far  as  they  have  assets,  in 
all  the  contracts  of  the  deceased  broken  in  his  lifetime  ;  and  likewise  upon 
such  as  are  broken  after  his  death,  for  the  due  performance  of  which,  skill 
or  taste  was  not  required.     Per  Parke,  B.,  Siboni  v.  Kirkman,  1  M.  & 
Welsh.  R.  423.     And  see  Com.  Dig.  "Administration,"  (B.)     But  at 
Common  Law  no  action  founded  in  tort,  and  in  which  the  plea  was  "  not 
guilty,"  is  held  to  survive  against  the  executor  or  administrator  of  the  tort 
feasor.     See  Note  to  Little  v.  Conant,  2  Pick.  (Mass.)  R.  527,  (edit.  1848.) 

3  Ford  «.  Monroe,  20  Wend.  (N.  Y.)  R.  210. 


CH.  XI.]       PASSENQER  CARRIERS  —  ACTIONS  AGAINST.  587 

declaration  charged,  that  by  the  negligence  of  the  defendant 
in  driving  a  gig,  a  son  of  the  plaintiff,  of  the  age  of  about 
ten  years,  was  run  over  and  killed ;  and  it  was  alleged  in 
one  of  the  counts,  by  way  of  special  damage,  ihat  in  conse- 
quence of  the  occurrence,  the  wife  of  the  plaintiff  became 
sick,  and  remained  so  for  a  long  time,  and  that  the  plnintiff 
was  not  only  deprived  of  her  society,  but  was  subjected  to 
great  expense  in  attendance  upon  her,  and  in  effecting  her 
recovery.  Damage  was  also  alleged  in  another  of  the 
counts,  as  the  loss  of  the  service  of  the  child  for  a  period  of 
ten  years  and  upwards.  The  happening  of  the  accident 
arid  the  sickness  of  the  plaintiff's  wife,  as  alleged,  were 
proved.  The  Judge  instructed  the  jury,  that  the  only 
question  in  the  case  was,  whether  the  servant  had  been 
guilty  of  negligence  ;  that  if  they  should  find  that  he  was 
so  chargeable,  then  the  plaintiff  would  be  entitled  to  recover 
such  sum  by  way  of  damages  as  they  should  be  of  opinion 
the  service  of  the  child  would  have  been  worth  to  him  until 
he  became  twenty-one  years  of  age,  and  also  that  he  was 
entitled  to  recover  damages  occasioned  by  his  wife's  sick- 
ness, consequent  upon  the  accident.  Upon  the  finding  of  a 
verdict  for  the  plaintiff  for  two  hundred  dollars,  and  upon  a 
motion  for  a  new  trial,  the  Court,  by  Nelson,  C.  J.,  said : 
"  The  damages  were  specially  laid  in  the  declaration,  and 
were  clearly  proved  to  have  been  the  direct  consequence  of 
the  principal  act  complained  of;  they  therefore  came  within 
the  well  settled  rule  respecting  special  damage." 

§  597.  So  far  as  regards  the  deprivation  of  the  society  of 
the  wife,  which  was  alleged  in  the  declaration  in  the  above 
case,  by  way  of  special  damage,  it  does  not  appear  in  the 
opinion  given  by  the  Court,  whether  they  did  or  did  not, 
consider  that  by  itself  a  sufficient  ground  for  the  plaintiffs 
recovery.  In  an  action  in  another  case  against  the  proprietors 
of  a  stage-coach,  on  the  top  of  which  the  plaintiff  and  his 
wife  were  travelling,  when  it  was  overturned  ;  whereby  the 
plaintiff  himself  was  much  bruised,  and  his  wife  was  so 


588  LAW   OF   CARRIERS.  [CH.  XI. 

severely  hurt,  that  she  died  about  a  month  after  in  a  hospital ; 
the  declaration,  besides  other  special  damage,  stated,  that 
"  by  means  of  the  premises,  the  plaintiff  had  wholly  lost, 
and  been  deprived  of,  the  comfort,  fellowship,  and  assistance 
of  his  said  wife,  and  had  from  thence  hitherto  suffered  and 
undergone  great  vexation  and  anguish  of  mind."  It  ap- 
peared that  the  plaintiff  was  much  attached  to  his  deceased 
wife,  and  that  he,  being  a  publican,  had  lost  the  use  of  her 
in  conducting  his  business.  Lord  Ellenborough  held,  that 
the  jury  could  only  take  into  consideration  the  bruises  which 
the  plaintiff  had  himself  received,  and  the  loss  of  his  wife's 
society,  and  the  distress  of  mind  he  had  suffered  on  her 
account,  from  the  time  of  the  accident  till  the  moment  of  her 
dissolution.  The  damage,  in  other  words,  as  to  the  plaintiff's 
wife,  must  stop  with  the  period  of  her  existence.1 

§  598.  Another  ground  of  special  damage  alleged  in  the 
above  case  of  Ford  v.  Monroe,  was  for  the  loss  of  service  of 
the  child  who  was  killed,  when  at  the  age  of  about  ten  years, 
and  the  jury  were  instructed  that  the  plaintiff  was  entitled  to 
such  sum,  by  way  of  damages,  as  they  thought  the  service  of 
the  child  would  have  been  worth  if  he  had  arrived  at  twenty- 
one  years  of  age.  But  how,  it  may  be  inquired,  were  the 
jury  authorized  to  suppose  that  the  child  would  have  arrived 
at  the  latter  age,  if  he  had  not  been  killed  in  the  manner  he 
was  ?  In  this  respect  the  charge  appears  somewhat  at  vari- 
ance with  the  view  taken  of  the  law  by  the  Court,  in  respect 
of  damage  by  loss  of  service,  in  Hall  v.  Hollander.2  The 
action  in  that  case,  was  trespass  for  driving  a  carriage  against 
the  plaintiff's  son  and  servant,  whereby  the  plaintiff  was 
deprived  of  his  son's  services  as  servant,  and  was  put  to 


1  Baker  v.  Bolton,  1  Camp.  R.  493.     If  an  action  is  brought  for  an 
injury  sustained  by  the  wife,  (and  not  by  the  husband,)  the  damages  are 
to  be  given  accordingly.     The  husband  must  be  joined  in  the  action,  but 
the  damages  are  to  be  given  for  the  injury  sustained  by  her. 

2  Hall  v.  Hollander,  4  B.  &  Cress.  R.  660. 


CH.  XI.]      PASSENGER   CARRIERS  —  ACTIONS   AGAINST.  589 

expense  in  obtaining  his  cure.  The  child  was  two  years  and 
a  half  old,  and  the  plaintiff  might  have  placed  him  in  a 
hospital,  which  would  not  have  occasioned  any  expense,  but 
he  preferred  having  him  at  home  ;  and  hence  it  was  held, 
that  the  loss  of  service  was  the  gist  of  the  action,  and  thai 
the  child  being  incapable  of  performing  any  service  by  reason 
of  his  tender  age,  the  action  was  not  maintainable,  particu- 
larly as  no  expense  had  been  necessarily  incurred.  "  I 
apprehend,"  said  Bay  ley,  J.,  "  that  the  gist  of  the  action 
depends  upon  the  capacity  of  the  child  to  perform  acts  of 
service.  Here  it  is  manifest,  that  the  child  was  incapable  of 
performing  any  service  :  the  authorities  upon  this  point  are  all 
one  way.  In  the  cases  which  have  been  cited,  the  child 
being  capable  of  performing  acts  of  service,  and  living  with 
the  parent,  would  naturally  be  called  upon  to  perform  some 
acts  of  service  ;  and  it  was,  therefore,  held,  that  service 
might  be  presumed,  and  that  evidence  of  it  need  not  be 
given."  By  Holroyd,  J.  :  "  The  mere  relationship  of  the 
parties  is  not  sufficient  to  constitute  a  loss  of  service  ;  and 
the  reasoning  in  all  the  modern  cases  shows  that  some  evi- 
dence of  service  is  necessary."  Abbott,  C.  J.,  said,  that  the 
Court  were  called  upon  to  go  further  than  the  principle  of 
the  Common  Law,  that  the  master  may  maintain  an  action 
for  a  loss  of  service,  sustained  by  the  tortious  acts  of  another, 
whether  the  servant  be  a  child  or  not ;  and  they  were  asked 
to  hold,  that  the  action  was  maintainable,  although  no  service 
was  or  could  be  performed  by  the  child  ;  and  that,  too,  upon 
a  declaration  alleging  the  existence  of  the  relation  of  master 
and  servant,  and  the  loss  of  the  services  by  such  servant. 
"  Such  a  decision,"  said  he,  "  could  not  be  warranted  by 
any  former  case." 

§  599.  The  case  of  Williams  v.  Holland,1  exhibits  a  case 
of  recovery  of  damages  for  an  injury  committed  by  a  col- 
lision on  a  highway  to  the  plaintiff's  son  and  servant,  but 

1  Williams  v.  Holland,  6  C.  &  Payne,  R.  23. 
50 


590  LAW   OF    CARRIERS.  [CH.  XI. 

the  age  of  the  son  is  not  stated.  In  Kennard  v.  Burton,  in 
Maine,1  it  was  held,  that  the  father  of  a  minor  daughter 
(eighteen  years  old)  might  maintain  an  action  against  an 
individual,  to  recover  damages  sustained  by  the  plaintiff  in 
the  loss  of  the  services  of  the  daughter,  by  an  injury  conse- 
quent upon  a  collision  between  the  defendant's  wagon  by 
his  negligence,  and  the  wagon  in  which  the  daughter  was 
riding.  The  Court,  in  giving  their  opinion  in  this  case,  are 
particular  in  distinguishing  it  from  Hall  v.  Hollander,  in 
which  the  child  was  too  young  to  perform  any  service.  The 
Court  also  held,  that  evidence  of  the  complaints  of  suffering 
made  by  the  daughter  of  the  plaintiff,  after  receiving  the 
injury,  but  during  the  time  when  it  was  material  to  prove 
such  suffering  to  have  existed,  was  admissible. 

§  600.  In  a  civil  Court,  the  death  of  a  human  being-  cannot, 
at  Common  Law,  be  complained  of  as  an  injury,  and,  as  in 
the  above  case  of  Baker  v.  Bolton,2  it  was  held,  damage 
must  stop  at  the  moment  of  death.  Such  has  been  regarded 
by  the  Supreme  Court  of  Massachusetts  as  the  doctrine  of 
the  Common  Law  in  Gary  and  Wife  v.  Berkshire  Railroad 
Co.,  and  Skinner  v.  Housatonic  Railroad  Co.,3  in  which  that 
Court  held,  that  an  action  on  the  case  could  not  be  main- 
tained by  a  widow  to  recover  damages  for  the  loss  of  her 
husband,  or  by  a  father  for  the  loss  of  his  child,  in  conse- 
quence of  the  death  of  the  husband  or  child,  occasioned  by 
the  carelessness  or  fault  of  the  agents  or  servants  of  a  rail- 
road corporation.  In  delivering  the  opinion  of  the  Court  in 
these  cases,  Metcalf,  J.,  observed  :  "  If  these  actions,  or 
either  of  them,  can  be  maintained,  it  must  be  upon  some 
established  principle  of  the  Common  Law ;  and  we  might 
expect  to  find  that  principle  applied  in  some  adjudged  case 


1  Kennard  v.  Burton,  12  Shep.  (Me.)  R.  39. 

2  Baker  v.  Bolton,  ante,  §  579.     See  2  Cro.  Eliz.  55  ;  Ib.  770 ;  Wheat- 
]y  v.  Lane,  1  Wms.  Saund.  216,  n.  (1). 

3  1  Cush.  (Mass.)  R.  475. 


CH.  XI.]        PASSENGER   CARRIERS  —  ACTIONS   AGAINST.  591 

in  the  English  books  ;  as  occasions  for  its  application  must 
have  arisen  in  very  many  instances.  At  the  least,  we  might 
expect  to  find  the  principle  stated  in  some  elementary  trea- 
tise of  approved  authority.  No  such  case  was  cited  by 
counsel ;  and  we  cannot  find  any.  This  is  very  strong  evi- 
dence, though  not  conclusive,  that  such  actions  cannot  be 
supported.  But  it  is  not  necessary  to  rely  entirely  on  this 
negative  evidence.  For  we  find  it  adjudged  in  Baker  v. 
Bolton,  1  Camp.  R.  493,  that  the  death  of  a  human  being 
is  not  the  ground  of  an  action  for  damages." 

§  600  a.  The  law  so  remained  in  England  until  a  very  late 
period,  and  was  so  prior  to  the  statute  9  and  10  Viet.  c.  93. 
By  section  1  of  that  act,  it  is  enacted,  that  "  whensoever  the 
death  of  a  person  shall  be  caused  by  wrongful  act,  neglect, 
or  default,  and  the  act,  neglect,  or  default  is  such  as  would 
(if  death  had  not  ensued)  have  entitled  the  party  injured  to 
maintain  an  action,  and  recover  damages  in  respect  thereof, 
then  and  in  every  such  case  the  person  who  would  have  been 
liable  if  death  had  not  ensued,  shall  be  liable  to  an  action  for 
damages,  notwithstanding  the  death  of  the  person  injured, 
and  although  the  death  shall  have  been  caused  under  such 
circumstances  as  amount  in  law  to  felony."  By  section  2, 
it  is  further  enacted,  "  that  every  such  action  shall  be  for  the 
benefit  of  the  wife,  husband,  parent,  and  child,  of  the  person 
whose  death  shall  have  been  so  caused,  and  shall  be  brought 
by  and  in  the  name  of  the  executor  or  administrator  of  the 
person  deceased  ;  and  in  every  such  action  the  jury  may 
give  such  damages  as  they  may  think  proportioned  to  the 
injury  resulting  from  such  death  to  the  parties  respectively, 
for  whose  benefit  such  action  shall  be  brought ;  and  the 
amount  so  recovered,  after  deducting  the  costs  not  recovered 
from  the  defendant,  shall  be  divided  amongst  the  before- 
mentioned  parties,  in  such  shares  as  the  jury  by  their  verdict 
shall  find  and  direct."  By  section  3,  the  action  for  damages 
must  be  brought  within  twelve  calendar  months  after  the 
death  of  such  deceased  person.  It  will  be  observed,  that 


592  LAW   OF  CARRIERS.  [CH.  XI. 

this  statute  applies  only  where  death  ensues  from  the  particu- 
lar wrongful  act,  and  does  not,  therefore,  affect  the  class 
of  cases  where  a  tort  is  committed  which  does  riot  occasion 
death.1 

§  601.  An  act  has  been  passed  by  the  legislature  of  Mas- 
sachusetts on  the  same  subject,  but  very  different  in  its  pro- 
visions from  the  one  above  given  ;  and  materially  different, 
in  so  far  as  respects  the  provision  in  the  English  act  for 
determining  the  damages  by  a  jury.  The  two  acts  in  ques- 
tion are  indeed  framed  on  different  principles,  and  for  differ- 
ent ends.  The  English  statute  gives  damages  as  such,  and 
proportioned  to  the  injury  to  the  husband  or  wife,  parents 
and  children  of  any  person  whose  death  is  caused  by  the 
wrongful  act,  neglect,  or  default  of  another  person  ;  adopt- 
ing, to  this  extent,  the  principle  on  which  it  has  been 
attempted  to  support  actions  to  recover  damages  for  the  loss 
of  a  husband,  or  of  a  child.  The  statute  of  Massachusetts 
is  confined  to  the  death  of  passengers  carried  by  certain 
enumerated  modes  of  conveyance.  A  limited  penalty  is 
imposed  as  a  punishment  of  carelessness  in  common  carriers. 
And  as  this  penalty  is  to  be  recovered  by  indictment,  it  is 
doubtless  to  be  greater  or  smaller,  within  the  prescribed 
maximum  and  minimum,  according  to  the  degree  of  blame 
which  attaches  to  defendants,  and  not  according  to  the  loss 
sustained  by  the  widow  and  heirs  of  the  deceased.  The 
penalty,  when  thus  recovered,  is  conferred  on  the  widow  and 


1  For  a  tort  committed  to  the  person,  it  is  clear  that,  at  Common  Law, 
no  action  can  be  maintained  against  the  personal  representatives  of  the 
tort-feasor,  nor  does  it  seem  that  the  above  statute,  9  and  10  Viet.  c.  93, 
supplies  any  remedy  against  executors  or  administrators  of  the  party  who, 
by  his  "  wrongful  act,  neglect,  or  default,"  has  caused  the  death  of 
another.  Broom's  Legal  Maxims,  710.  For  the  application  of  the  doc- 
trine, under  the  statute,  of  Priestly  v.  Fowler,  (ante,  §  578,)  see  Reedie  v. 
North  Western  Railway  Co.,  Law  Reporter  for  April,  1850,  p.  6i26,  and 
for  the  doctrine  applied  under  it,  to  cases  of  mutual  negligence,  (ante, 
^556,  et  seq.)  See  Armsworth  v.  South  Eastern  Railway  Co.  11  Jur.  75. 


CH.  XI.]      PASSENGER   CARRIERS  —  ACTIONS   AGAINST.  593 

heirs,  not  as  damages  for  their  loss,  but  as  a  gratuity  from 
the  State.1  Thus  the  statute  is  as  follows :  "  If  the  life  of 
any  person,  being  a  passenger,  is  lost  by  reason  of  the  negli- 
gence or  carelessness  of  the  proprietor  or  proprietors  of  any 
railroad,  steamboat,  stage-coach,  or  of  common  carriers  of 
passengers,  or  by  the  unfitness  or  gross  negligence  or  care- 
lessness of  their  servants  or  agents,  in  this  Commonwealth, 
such  proprietor  or  proprietors,  and  common  carriers,  shall  be 
liable  to  a  fine  not  exceeding  five  thousand  dollars,  nor  less 
than  five  hundred  dollars,  to  be  recovered  by  indictment,  to 
the  use  of  the  executor  or  administrator  of  the  deceased 
person,  for  the  benefit  of  his  widow  and  heirs  ;  one  moiety 
thereof  to  go  to  the  widow,  and  the  other  to  the  children  of 
the  deceased  ;  but  if  there  shall  be  no  children,  the  whole  to 
the  widow,  and  if  no  widow,  to  heirs  according  to  the  law 
regulating  the  distribution  of  intestate  personal  estate  among 
heirs."  2 

•  §  602.  In  respect  to  the  remedy  for  the  recovery  of  dam- 
ages for  an  injury  sustained  by  collision  of  carriages,  in  con- 
sequence wholly  of  the  negligence  of  the  driver  of  one  of 
them,  an  action  of  trespass  may  be  maintained  ;  and  so  also 
may  that  action  be  maintained  for  any  injury  sustained  by  a 
foot-passenger,  by  being  run  against  by  a  carriage  wholly  in 
consequence  of  the  person  driving.3  In  either  of  these  cases 
the  act  complained  of  is  immediate,  and  not  merely  a  conse- 
quence of  the  act  which  occasions  the  injury  ;  and  it  matters 
not,  so  long  as  the  injury  complained  of  is  direct  and  violent, 
whether  the  act  which  caused  it  be  done  intentionally,  or 
through  negligence.4  Thus,  where  the  defendant  driving  his 

1  Per  Metcalf,  J.,  in  delivering  the  judgment  of  the  Court,  in  Gary  and 
Wife  v.  Berkshire  Railroad  Co.  and   Skinner  v.  Housatonic  Railroad  Co. 
1  Gushing,  (Mass.)  R.  475. 

2  Passed  March  23,  1840,  Supp.  to  Rev.  Laws  of  Mass.  c.  80,  p.  1G5.   . 

3  See  ante,  §  563,  et  seq. 

4  3  Stark.  Ev.  1107,  (Lond.  edit.  1842.)     The  owner  of  a  ship,  being 
himself  on  board,  and  standing  at  the  helm,  unintentionally  runs  her 

50* 


594  LAW   OF   CARRIERS.  [cH.  XI. 

carriage  on  the  wrong  side  of  the  road,  when  it  was  dark, 
drove  by  accident  against  the  plaintiff's  curricle,  it  was  held, 
that  the  injury  which  the  plaintiff  had  sustained,  having  been 
immediate,  from  the  act  of  driving  by  the  defendant,  trespass 
might  be  maintained.1  It  is  a  direct  trespass  to  injure  the 
person  of  another,  by  driving  a  carriage  against  the  carriage 
wherein  such  person  is  sitting,  although  the  last  mentioned 
carriage  be  not  the  property  of,  nor  in  the  possession  of,  the 
person  injured  ; 2  and  where  the  defendant  drove  his  gig 
against  another  chaise,  whereby  the  plaintiff's  wife  was  much 
hurt  and  injured,  it  was  held,  that  an  action  at  the  suit  of  the 
husband  and  wife  was  properly  brought  in  trespass.3  Where 
the  defendant's  horses  and  wagon  were  wilfully  driven  against 
the  horses  and  wagon  of  the  plaintiff,  by  which  the  plaintiff's 
horses  were  frightened,  and  ran  and  broke  loose  from  their 
wagon,  and  they  were  thereby  injured  and  the  harness 
broken ;  it  was  held,  that  trespass  was  the  proper  remedy, 
and  not  trespass  on  the  case.4  The  defendant's  gig,  in 
which  he  was  driving  at  a  "  brisk  trot "  through  a  narrow- 
street,  came  in  contact  with  the  plaintiff's  horse,  which  was 
loose  in  the  street,  by  which  the  horse  was  killed ;  and  the 
defendant  was  held  liable  in  an  action  of  trespass.5 


against  another  ship,  from  unskilful  management ;  the  remedy  is  trespass 
and  not  case.  Covell  v.  Laming,  1  Campb.  R.  497.  Trespass,  and  not 
case,  is  the  proper  action  to  recover  damages  for  an  injury  sustained  by 
the  negligent  driving  of  the  defendant's  horse.  Waldron  v.  Copper,  Coxe, 
(N.  J.)  R.  339.  And  see  Vincent  v.  Stinehour,  7  Verm.  R.  62;  Mc- 
Laughlin  v.  Pryor,  1  Carr.  &  Marsh.  R.  354.  But  see  post,  §  606. 

1  Leame  v.  Bray,  3  East,  R.  593. 

2  1  Chitt.  PI.  127. 

3  Hopper  v.  Reeve,  7  Taunt.  R.  698. 

4  Rappelyea  v.  Hulse,  7  Halst.  (N.  J.)  R.  257. 

5  Payne  v.  Smith,  4  Dana,  (Ken.)  R.  497.     Where  an  infant  hired  a 
chaise,  without  the  knowledge  of  his  father,  and  the  father  ratified  the  act 
by  directing  the  infant  to  pay  the  hire  out  of  his  wages,  which  belonged  to 
the  father  ;  it  was  held,  that  the  father  had  such  a  special  property  in  the 
chaise  as  would  enable  him  to  maintain  trespass  for  an  injury  done  to  it 
during  the  term  of  hire.     Boynton  v.  Turner,  13  Mass.  R.  391. 


CH.  XT.]      PASSENGER  CARRIERS  —  ACTIONS    AGAINST.  595 

§  603.  But  case,  instead  of  trespass,  must  always  be 
adopted  where  the  defendant's  servant,  and  not  the  defend- 
ant personally,  caused  the  injury  by  his  carelessness,  &C.1 
In  an  action  on  the  case  against  three  defendants,  proprietors 
of  a  stage-coach,  for  carelessness  and  mismanagement  of 
their  coach  and  horses,  whereby  the  coach  ran  against  the 
plaintiff  and  broke  his  leg ;  it  was  held,  that  the  plaintiff 
might  maintain  case  against  all  the  proprietors,  though  he 
might  perhaps  have  been  entitled  to  bring  trespass  against 
the  one  who  drove  the  coach.  Holroyd,  J.,  said,  that  the 
real  ground  of  the  action  was  the  negligence  of  the  defendant 
who  drove,  and  "  they  are  all  responsible  for  the  person 
appointed  to  drive,  whether  the  person  be  or  be  not  one  of 
themselves.  They  are  all  responsible  as  the  owners  of  the 
coach  and  horses.  Trespass  might  lie  against  the  driver  by 
reason  of  his  doing  the  particular  act ;  but  still  there  would 
be  a  ground  of  action  against  his  co-proprietors,  and  that 
could  only  be  in  an  action  on  the  case,  for  they  are  not  by 
his  act  made  co-trespassers.  If  case  lies  against  them,  it  lies 
against  him  also  as  a  joint  proprietor,  if  a  ground  of  action 
remains,  after  the  trespass  has  been  waived."  2 

§  604.  In  order  to  identify  the  principal  with  an  agent  who 
commits  a  trespass,  it  is  not  sufficient  to  prove  merely  that 
the  agent,  when  he  offended,  had  the  conduct  of  his  master's 
lawful  business ;  for  although  a  principal  is  responsible  for 


1  1  Chitt.  PI.  127,  (10th  Am.  Ed.)     And  see  Barnes  v.  Kurd,  11  Mass. 
R.  57 ;  Campbell  v.  Phelps,  1  Pick.  (Mass.)  R.  62. 

2  Morton  v,  Harderne,  4  B.  &  Cress.  R.  223.     The  decision  in  this 
case  is  commented  upon  and  approved  by  the  Court  in  Wright  v.  Wilcox, 
19  Wend.  (N.  Y.)  R.  343,  in  which  the  Court  say,  that  in  a  case  of 
strict  negligence,  they  see  no  reason  why  an  action  will  not  lie  against 
both  jointly.     "  They  are  both  guilty  of  the  same  negligence  at  the  same 
time,  and  under  the  same  circumstances  ;  the  servant  in  fact,  and  the 
master  constructively,  by  the  servant   his  agent."      See   also  Ogle  r. 
Barnes,  8  T.  R.  188;  Michel  ».  Abestree,  2  Lev.  R.  172;  Whittemore 
v.  Waterhouse,  4  C.  &  Payne,  R.  383. 


596  LAW   OP   CARRIERS.  [cH.  XI. 

the  negligence  of  his  agent,  he  is  not  responsible  for  his 
wilful  misconduct.1  If  the  agent  of  A.  negligently  drove 
the  carriage  of  A.  against  that  of  B.,  the  agent  would  be 
liable  in  trespass,  and  A.  would  be  liable  in  case  for  the 
negligence  of  his  servant ;  2  but  if  the  agent  in  such  case 
wilfully  drove  the  carriage  of  A.  against  that  of  B.  ivithout 
the  assent  of  A.,  the  latter  would  not  be  responsible.3  That 
is,  a  master  is  not  liable  for  the  wilful  trespass  of  his  ser- 
vant.4 If  the  defendant's  servant,  in  driving  his  master's 
carriage,  wantonly  strike  the  horses  of  the  plaintiff,  in  con- 
sequence of  which  the  carriage  of  the  plaintiff  is  injured, 
the  defendant  is  not  responsible ;  but  if  the  servant  so  strike, 
although  injudiciously,  in  the  course  of  his  employment,  and 
in  furtherance  of  it,  the  defendant  is  liable  in  case.5  Where 
a  trespass  is  the  natural  consequence  of  the  act  directed  by 
the  master  to  be  done  by  a  servant,  the  master  is  liable, 
although  his  direction  to  the  servant  is  to  avoid  the  trespass.6 

1  3  Stark.  Ev.  1111,  (Lond.  Ed.)  1842. 

2  Morley  v.  Gainsford,  2  H.  Bl.  R.  441. 

3  Macmanus  v.  Crickett,  1  East,  R.  106. 

4  Wright  v.  Wilcox,  19  Wend.  (N.  Y.)  R.  343.     In  Macmanus  ». 
Crickett,  ub.  sup.,  Lord  Kenyon  said  :  —  "  When  a  servant  quits  sight  of 
the  object  for  which  he  is  employed,  and  without  having  in  view  his  mas- 
ter's orders,  pursues  that  which  his  own  malice  suggests,  he  no  longer  acts 
in  pursuance  of  the  authority  given  him."     He  puts  the  master's  liability 
on  the  ground  of  negligence  or  unskilfulness,  with  no  purpose  but  an  ex- 
ecution of  his  orders.     The  Court,  in  Wright  v.  Wilcox,  ub.  sup.,  say  :  — 
"  The  dividing  line  is  the  wilfulness  of  the  act.     If  the  servant  makes  a 
careless  mistake  of  commission  or  omission,  the  law  holds  it  to  be  ihe  mas- 
ter's business  negligently  done.     But  it  is  different  with  a  wilful  act  of 
mischief.     To  subject  the  master  in  such  a  case,  it  must  be  proved,  that 
he  actually  assented,  for  the  law  will  not  imply  assent.     In  the  particular 
affair,  there  is,  then,  no  longer  the  presumed  relation  of  master  and  ser- 
vant.    The  distinction  seems  to  resolve  itself  into  a  question  of  evidence." 

5  Croft  v.  Alison,  4  B.  &  Aid.  R.  590. 

6  Gregory  v.  Piper,  9  B.  &  Cress.  R.  590.     In  an  action  of  trespass,  it 
is  competent  for  the  jury  to  consider  the  words  which  the  defendant  used 
subsequently  to  the  trespass,  in  coming  to  the  conclusion  whether  he  was 
a  joint  trespasser  with  him  actually  committing  the  mischief.    McLaughlin 
v.  Pryor,  1  C.  &  Marsh.  R.  354 ;  and  see  Chandler  v.  Broughton,  1  Cr. 
&  Mces.  R.  29;  and  see  ante,  §  575. 


CH.  XI.]        PASSENGER   CARRIERS  —  ACTIONS   AGAINST.  597 

§  605.  In  Wright  v.  Wilcox,  in  New  York,1  there  was  an 
action  on  the  case  for  an  injury  sustained  by  the  son  of  the 
plaintiff,  who  was  a  minor,  in  being  run  over  by  a  wagon 
driven  by  S.  W.,  the  son  of  J.  W.,  whilst  in  the  employment 
of  his  father.  The  plaintiff's  son  was  a  very  young  lad,  and 
on  his  way  to  school,  asked  S.  W.  to  permit  him  to  ride  ; 
who  answered  that  he  might,  when  he  got  up  a  hill  which  he 
was  then  ascending.  When  the  hill  was  ascended,  the  lad 
took  hold  of  the  side  of  the  wagon  between  the  front  and 
the  hind  wheels.  S.  W.  did  not  stop  his  team.  He  was 
cautioned  by  a  by-stander,  that  if  he  did  not  stop,  he  would 
kill  the  boy.  He  looked  behind  him  ;  the  horses  were  then 
walking;  and  seeing  the  plaintiff's  son  and  other  boys 
attempting  to  get  on  the  wagon,  he  cracked  his  whip  and 
put  his  horses  on  a  trot.  The  plaintiff's  son  soon  fell,  and 
one  of  the  hind  wheels  passed  over  him,  and  greatly  injured 
him.  A  joint  action  was  brought  against  the  defendants. 
The  Judge  charged  the  jury,  that  both  of  the  defendants 
were  liable,  whether  the  injury  was  wilful,  or  only  attributa- 
ble to  negligence.  But  a  new  trial  was  granted,  on  the 
ground,  that  it  was  difficult  to  infer  from  the  evidence  any 
thing  short  of  a  design  in  S.  W.,  the  driver,  to  throw  the 
plaintiff's  boy  from  the  wagon.  If  S.  W.,  the  driver,  said 
the  Court,  acted,  in  whipping  the  horses,  with  the  wilful 
intention  to  throw  the  plaintiff's  boy  off,  it  was  a  plain  tres- 
pass, for  which  his  master  was  no  more  liable,  than  if  his 
servant  had  committed  any  other  assault  and  battery. 

§  606.  The  weight  of  authority  may  now  be  in  favor  of 
the  doctrine,  that  if  an  injury  done  by  one  person  to  another 
is  both  direct  and  consequential,  the  party  injured  has  an  elec- 
tion to  bring  case  or  trespass.2  As  where  the  defendant  so 


1  Wright  v.  Wilcox,  19  Wend.  (N.  Y.)  R.  343. 

2  Ante,  %  602  ;  Blin  v.  Campbell,  14  Johns.  (N.  Y.)  R.  432.     That  the 
trespass  may  be  waived,  see  Morton  v.  Harderne,  ante,  §  603.     The  gen- 
eral principle  established  in  Spencer  v.  Percival,  18  Johns.  R.  283,  is,  that 


598  LAW   OF   CARRIERS.  [CH.  XI. 

carelessly  drove  his  horse  and  gig  as  to  run  against  the  plain- 
tiff in  the  street,  and  knock  her  down  ;  whereby  she  was 
injured  and  became  permanently  lame  ;  it  was  held,  that 
case  was  a  proper  action.1 


whether  trespass  or  case  is  the  proper  action,  depends  on  the  fact,  whether 
the  injury  was  immediate  or  consequential.  But,  another  principle  is  also 
recognized,  viz.,  that  if  the  injury  is  attributable  to  negligence,  though  it 
were  immediate,  the  party  injured  has  his  election,  either  to  treat  the 
negligence  of  the  defendant  as  the  cause  of  action,  and  declare  in  case,  or 
to  consider  the  act  itself  as  the  injury,  and  to  declare  in  trespass,  as  in 
Blin  v.  Campbell,  ub.  sup.  See  also  Turner  v,  Hawkins,  1  Bos.  &  Pull. 
R.  472.  In  Hall  v.  Pickard,  3  Campb.  R.  187,  it  was  held,  that  if  the 
owner  of  a  horse  lets  him  to  hire  for  a  time  certain,  during  which  he  is 
killed  by  the  owner  of  a  cart  driving  it  violently  against  him,  the  remedy 
of  the  owner  of  the  horse  is  case  and  not  trespass.  But  Lord  Ellenbo- 
rough,  in  this  case,  said  :  —  "It  may  be  worthy  of  consideration,  whether, 
in  those  instances  where  trespass  may  be  maintained,  the  party  may  not 
waive  the  trespass,  and  proceed  for  the  tort."  Where  A.,  through  negli- 
gence and  undesignedly,  discharged  a  firelock  in  such  a  manner,  as  to 
wound  B.,  it  was  held,  that  B.  had  his  election  to  treat  the  negligence  of 
A.  as  the  cause  of  the  injury,  and  declare  in  case  ;  or  to  treat  the  act 
itself  as  the  cause  of  the  injury,  and  declare  in  trespass.  Dalton  v. 
Favour,  3  N.  Hamp.  R.  465.  See  also  there  cited,  5  Bos.  &  Pull.  R. 
117  ;  3  Burr.  R.  1560 ;  14  Johns.  R.  432  ;  3  East,  R.  600,  601.  Contra, 
Gates  v.  Miles,  3  Conn.  R.  64.  But  this  case  might  as  well  have  been 
decided  for  the  plaintiff;  and  it  is  very  probable  that  the  fact,  that  the 
action  of  trespass  was  barred  by  the  statute  of  limitations,  induced  the 
Court  to  deny  the  remedy  by  an  action  on  the  case.  Per  Redfield,  J.,  in 
Clafflin  v.  Wilcox,  18  Vermt.  R.  605.  In  this  case  it  was  held,  that  an 
action  on  the  case  might  be  sustained  for  an  injury  to  the  plaintiff's  horse 
which  was  injured  by  the  great  force  by  which  it  was  struck  by  the  impro- 
per and  careless  driving  of  the  defendant's  vehicle.  The  action  on  the 
case  is  altogether  the  most  favorable  for  the  defendant,  because  he  can 
make  a  defence  without  the  technicality  of  special  pleading,  and  the  plain- 
tiff must  recover  a  larger  sum  in  trespass,  in  order  to  carry  costs.  There 
cannot  be  a  doubt  that  a  recovery  in  an  action  upon  the  case,  may  be 
pleaded  in  bar  to  an  action  of  trespass  afterwards  brought  for  the  same 
injury.  Curia,  per  Savage,  J.,  in  M'AlIister  v.  Hammond,  6  Cow.  (N.  Y.) 
R.  342. 

1  M'AlIister  ».  Hammond,  6  Cow.  (N.  Y.)  R.  342. 


CH.  XI.]        PASSENGER   CARRIERS  —  ACTIONS   AGAINST.  599 

§  607.  If  an  injury  be  inflicted  on  a  child  while  living 
with,  and  in  the  service  of,  his  father,  he  may  maintain  tres- 
pass ;  but  if  at  the  time  he  be  hired  to,  and  in  the  service 
of,  another,  trespass  on  the  case  is  the  proper  remedy.1  But 
where  a  child  is  of  such  tender  age  as  not  to  possess  sufficient 
discretion  to  avoid  danger,  is  permitted  by  his  parents  to  be 
in  a  public  highway,  without  any  one  to  guard  him,  and  is 
there  run  over  by  a  traveller  and  injured,  neither  trespass  nor 
case  lies  against  the  traveller,  if  there  be  no  pretence  that  the 
injury  was  voluntary,  or  arose  from  culpable  negligence  on 
his  part.  Although  the  child,  by  reason  of  his  tender  years, 
is  incapable  of  using  that  ordinary  care  which  is  required  of 
a  discreet  and  prudent  person,  the  want  of  such  care  on  the 
part  of  the  parents  or  guardians  of  the  child,  furnishes  the 
same  answer  in  respect  to  mutual  negligence,  as  would  the 
omission  of  ordinary  care  on  the  part  of  the  plaintiff  in  an 
action  by  an  adult.  And,  it  seems,  the  same  rule  will  apply 
in  an  action  by  a  blind,  or  deaf  man,  who,  under  similar  cir- 
cumstances, received  an  injury  on  a  public  highway.2  As  an 
infant  is  personally  liable  for  wrongs  which  he  commits 
against  the  person  or  property  of  others,3  so,  when  he  com- 
plains of  wrongs  to  himself,  the  respondent  has  a  right  to 
insist,  that  he  should  not  have  been  the  heedless  instrument 
of  his  own  injury. 

§  608.  For  an  injury  done  to  an  infant,  of  the  most  tender 
age,  by  his  being  run  over  by  a  vehicle  on  the  public  high- 
way, an  action  may  be  brought  in  the  name  of  the  child, 
by  his  next  friend.4  In  respect  to  a  very  young  child,  the 

1  Wilt  v.  Vickers,  8  Watts,  (Penn.)  R.  227.     See  also  Flemington  v. 
Smithers,  2  Carr.  &  Payne,  R.  292. 

2  Harifield  v.  Roper,  21  Wend.  (N.  Y.)  R.  615. 

3  Bullock  v.  Babcock,  3  Wend.  (N.  Y.)  R.  391,  and  the  cases  there 
cited. 

4  In  England,  it  seems,  the  action  must  be  so  brought,  but  whether  it 
be  so  in  New  York,  under  the  Revised  Statutes,  qiuere.     Hartfield  v. 
Roper,  ub.  sup. 


600  LAW   OF    CARRIERS.  [CH.  XI. 

father  (according  to  Hall  v.  Hollander1)  can  bring  no  action 
even  for  loss  of  service. 

§  609.  (15.)  Rights  of.]  Although  a  public  carrier  of 
passengers  is  under  obligation  to  receive  all  persons,  with 
their  baggage,  who  apply  for  a  passage,  yet  we  have  seen 
that  this  rule  is  subject  to  the  carrier's  right  to  provide  for 
his  own  interests,  by  rejecting  persons  who  apply  whose 
character  can  be  reasonably  objected  to,  or  who  refuse  to 
comply  with  the  carrier's  reasonable  regulations  for  the 
proper  arrangement  and  conduct  of  his  business,  or  who 
have  for  their  object  an  interference  with  the  carrier's  busi- 
ness, and  entertain  the  design  of  making  it  less  lucrative  to 
him.2  As  the  carrier  is  under  obligation  to  receive  and  carry 
all  persons  who  are  not  thus  objectionable,  when  they  have 
room,  so,  on  the  other  hand,  he  is  entitled  to  be  secure  of  his 
reward  and  compensation.  He  has,  therefore,  a  right  to 
demand  his  fare  at  the  time  the  passenger  engages  his  seat ; 
and  if  the  passenger  refuses,  his  place  may  be  taken  by 
another.3  If  a  person  takes  a  place  in  a  conveyance,  and 
pays  at  the  time  only  a  deposit,  as  half  the  fare,  for  example, 
and  is  not  present  and  ready  to  take  his  place  when  the 
vehicle  is  setting  off,  the  proprietor  of  the  conveyance  is  at 
liberty  to  fill  up  his  place  with  another  passenger  ;  but  if  at 
the  time  of  taking  his  place  he  pays  the  whole  fare,  then  the 
proprietor  cannot  dispose  of  the  place,  and  the  seat  may  be 
taken  at  any  stage  of  the  journey.4  In  order  to  guard  against 
fraud,  (as  well  as  to  secure  the  due  payment  of  the  fares,)  as 
well  on  the  part  of  the  public  as  of  iheir  own  servants,  rail- 
way companies  have  invariably  found  it  indispensable  to 
adopt  the  ticket  system,  which  requires  fares  in  all  instances 


1  Hall  v.  Hollander,  4  B.  &  Cress.  R.  660,  and  cited  more  fully,  ante, 
§598. 

2  See  ante,  §  524  -  531. 

3  2  Steph.  N.  P.  984  ;  Story  on  Bailm.  §  603  ;  ante,  §  531. 

4  Ker  v.  Mountain,  1  Esp.  R.  27. 


CH.  XI.]  PASSENGER   CARRIERS — RIGHTS   OF.  601 

to  be  prepaid  ;  and  tickets  given  to  the  passengers,  which 
are  considered  as  the  sole  vouchers  for  the  payment  of  the 
fare,  are  collected  from,  or  required  to  be  exhibited  by,  the 
passengers  before  they  leave  the  trains  or  stations.1  The 
ticket  obtained  by  a  passenger  (in  connection  with  the  estab- 
lished rules  of  a  railroad  company)  was  treated  in  the  light 
of  a  special  contract  in  the  case  of  Cheney  v.  Boston  and 
Maine  Railroad  Company.2  By  the  rules  of  the  company 
the  purchasers  of  tickets  for  a  passage  on  the  road,  from  one 
place  to  another,  were  required  to  go  through  in  the  same 
train  ;  and  passengers  who  were  to  stop  on  the  road,  and 
afterwards  finish  their  passage,  in  another  train,  were  re- 
quired to  pay  more  than  when  they  were  to  go  through  in 
the  same  train.  A.,  not  knowing  these  rules,  purchased  a 
ticket  for  a  passage  from  D.  to  B.,  and  entered  the  cars  with 
an  intention  to  stop  at  E.,  an  intermediate  place,  and  go  to  B. 
in  the  next  train.  When  he  took  his  ticket,  he  was  informed 
of  the  rule  that  required  him  to  go  through  in  the  same  train, 
and  a  check  was  given  him,  on  which  were  the  words  "  good 
for  this  trip  only."  The  conductor  then  offered  to  give  back 
to  A.  the  money  which  he  had  paid,  deducting  the  amount  of 
his  passage  from  D.  to  E.,  which  A.  refused  to  accept,  but 
demanded  the  ticket  in  exchange  for  the  check.  He  stopped 
at  E.,  went  to  B.  on  the  same  day,  in  the  next  train,  and 
offered  his  check,  which  was  refused,  and  he  was  obliged  to 
pay  the  price  charged  for  a  passage  from  E.  to  B.,  and  after- 
wards brought  an  action  against  the  company  for  breach  of 
contract.  It  was  held  that  the  action  could  not  be  main- 
tained. 

§  609  a.  If  the  passenger  carrier  undertakes  to  convey 
persons  without  having  been  previously  paid,  the  law  pre- 
sumes that  he  considers  the  possession  of  their  baggage  or 
luggage  a  security  for  his  expected  remuneration  ;  and, 

1  See  ante,  §  525,  530,  note. 

2  Cheney  «.  Boston  and  Maine  Railroad  Co.  11  Met.  (Mass.)  R.  121.  , 

51 


602  LAW   OF   CARRIERS.  [CH.  XII. 

agreeably  to  this  presumption,  he  may  detain  the  possession, 
at  the  end  of  the  transit,  until  he  has  received  satisfaction. 
The  carrier,  in  other  words,  has  a  lien  upon  the  baggage  or 
luggage  of  passengers ;  but  not  on  their  persons,  or  the 
clothes  they  have  on.1  The  general  doctrine  of  lien,  as 
applicable  to  the  carriage  of  every  description  of  property, 
has  been  largely  discussed  in  a  preceding  chapter.2  As  to 
the  carrier's  right  to  the  recovery  of  his  fare  after  the  pos- 
session of  the  baggage  has  been  parted  with,  he  is  of  course, 
in  such  event,  compelled  to  have  recourse  to  an  action  at 
law ;  for  a  person  cannot  have  a  lien  upon  any  property, 
unless  it  is  legally  in  his  possession.3 


1  Wolf  v.  Summers,  2  Camp.  R.  631,  and  ante,  §  375. 

2  Ante,  Chap.  IX.  §  357  -  391.     That  if  A.  come  wrongfully  into  pos- 
session of  property  which  he  delivers  to  a  carrier  or  to  an  innkeeper,  there 
is  still  a  lien  upon  it,  unless  the  carrier  or  the  innkeeper  knew  that  A.  was 
a  wrongdoer,  see  ante,  §  364  -  368.     Held  in  Grinnell  v.  Cooke,  in  New 
York,  3  Hill,  R.  485,  that  if  a  traveller,  having  wrongfully  taken  a  horse, 
put  up  at  an  inn,  and  became  a  guest,  the  innkeeper,  provided  he  had  no 
notice  of  the  wrong,  may  assert  his  lien  on  the  horse,  even  as  against  the 
true  owner.     Of  course  the  same  doctrine  is  applicable  to  the  delivery  of 
baggage  by  a  passenger,  in  a  public  conveyance.     See  Mason  v.  Thomp- 
son, 9  Pick.  (Mass.)  R.  288. 

3  Ante,  §  376,  391. 


I 

CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  603 


CHAPTER  XII. 

OF  CARRIERS   OF   PASSENGERS   BY  WATER. 

§  610.  THE  peculiar  character,  in  a  legal  point  of  view,  of 
common  carriers  of  passengers  by  water,  renders  it  expe- 
dient that  the  subject  of  their  duties  and  liabilities  should  be 
considered  in  a  separate  and  distinct  chapter.  They  are  of 
course  bound,  like  common  carriers  of  passengers  by  land, 
to  the  utmost  care  and  diligence,  on  the  part  of  themselves 
and  their  servants,1  and  for  the  sufficiency  of  their  water- 
craft  ; 2  and  their  obligation  in  the  latter  respect,  or,  in  other 
words,  the  duty  of  sea-worthiness,  is  analogous  to  the  duty 
in  respect  to  land-worthiness,  of  land  carriers.3  But  in 
cases  of  personal  injuries  on  the  voyage,  and  in  cases  of 
injuries  occasioned  by  collision  of  vessels,  where  the  ser- 
vice is  the  transportation  of  goods  or  passengers  within 
the  limits  of  tide  waters?  the  Admiralty  Court  has  jurisdic- 

1  See  ante,  §  523,  §  568,  et  seq.,  §  540,  et  seq. 

2  See  ante,  $  539. 

3  See  ante,  §  534,  et  seq. 

*  See  ante,  §  419.  That  a  Court  of  Admiralty  has  jurisdiction  over 
marine  torts,  generally,  see  ante,  §  420;  and  over  wrongs  committed  by 
the  master  of  a  ship  on  a  passenger,  on  the  high  seas,  Chamberlain  r. 
Chandler,  3  Mason,  (Cir.  Co.)  R.  242.  In  that  case,  there  was  a  libel  in 
the  Admiralty  against  the  master  of  a  ship  for  ill  treatment  of  certain  pas- 
sengers. No  exception  was  interposed  against  the  jurisdiction  of  the 
Court,  but  Mr.  J.  Story,  in  giving  the  opinion  of  the  Court,  wished  it  to 
be  understood,  that  the  point  had  not  passed  sub  silentio,  and  that  it  had 
attracted  the  consideration  of  the  Court ;  and  he  proceeded  to  say  :  "  The 
contract  itself  is  a  maritime  contract  for  the  conveyance  of  passengers  on 
the  high  seas,  and  the  wrongs  complained  of,  are  gross  ill  treatment  and 
misconduct  in  the  course  of  the  voyage,  while  on  the  high  seas,  by  the 
master,  in  breach  of  the  stipulations  necessarily  implied  in  his  contract,  of 


604  LAW    OF   CARRIERS.  [cH.  XII. 

tion  ; 1  and  indeed  that  tribunal  is  the  only  one,  under  the 
dominion  of  the  Common  Law,  which  can  administer  a  rem- 


the  duties  of  his  office,  and  of  the  rights  of  the  libellants,  under  the  mari- 
time law.  The  jurisdiction  of  Courts  of  Admiralty  over  torts,  committed 
in  personam  on  the  high  seas,  has  never,  to  my  knowledge,  been  doubted 
or  denied  by  the  Courts  of  Common  Law,  and  has  often  been  recognized 
by  adjudications  in  the  Admiralty,  2  Brown,  Adm.  108  ;  3  Bl.  Comm.  106. 
In  4  Inst.  134,  the  Common  Law  Judges  admitted,  in  the  fullest  manner, 
that  of  contracts,  pleas,  and  querelas  made  upon  the  seas,  &c.,  the  Admiral 
hath  and  ought  to  have  jurisdiction."  The  learned  Judge,  in  expounding 
the  law  in  respect  to  Admiralty  jurisdiction  in  such  cases  as  those  in  ques- 
tion, further  asserted,  that  it  made  no  difference  in  point  of  principle, 
whether  an  injury  to  a  passenger  by  the  master  be  direct  or  consequential 
wrong,  "whether  it  be  an  assault  and  imprisonment  or  a  denial  of  all 
comforts  and  necessaries,  whereby  the  health  of  the  party  is  materially 
injured,  or  he  is  subjected  to  gross  ignominy  and  mental  suffering."  The 
Admiralty  has  been  accustomed  to  deal  with  subjects  of  this  nature  from 
very  early  times.  In  the  case  of  the  Ruckers,  4  Rob.  R.  73,  a  civil  suit 
for  damages  was  brought  in  the  Admiralty  for  an  assault  by  the  master  of 
a  ship  on  a  passenger  on  the  high  seas,  and,  on  full  consideration,  the 
jurisdiction  was  sustained.  On  that  occasion,  the  Court  directed  the 
records  to  be  searched,  and  the  Registrar  reported,  "  that  many  instances 
were  found  of  proceedings  on  damage  on  behalf  of  persons  described  as 
part  of  the  ship's  company,  against  officers  or  others  belonging  to  the 
same  ship,  and  that  there  were  other  instances  of  proceedings  on  the  part 
of  A.  B.  against  C.  D.  without  any  specification  of  the  capacity  in  which 
the  persons  stood."  Sir  William  Scott  said,  —  "  Looking  to  the  locality 
of  the  injury,  that  it  was  done  on  the  high  seas,  it  seems  to  be  fit  matter 
for  redress  in  this  Court."  See  also  .the  elaborate  opinions  of  several  of 
the  Judges  of  the  Supreme  Court  of  the  United  States,  upon  the  subject 
of  Admiralty  jurisdiction,  in  the  case  of  the  New  Jersey  Steam  Naviga- 
tion Company  v.  Merchants  Bank,  6  How.  (U.  S.)  R.  344.  See  7  Peters, 
(U.  S.)  R.  324.  Admiralty  jurisdiction  of  the  Courts  of  the  United 
States  is  not  taken  away  because  the  Courts  of  Common  Law  may  have 
jurisdiction  in  a  case  within  the  Admiralty.  Nor  is  a  trial  by  jury  any 
test  of  Admiralty  jurisdiction.  The  subject-matter  or  service  gives  juris- 
diction in  Admiralty  ;  and  locality  gives  it  in  tort  or  collision.  In  such 
cases  happening  upon  the  high  seas,  or  within  the  ebb  and  flowing  of  the 
tide,  as  far  up  a  river  as  the  tide  ebbs  and  flows,  though  it  may  be  infra 
corpus  comitatus,  Courts  of  Admiralty  of  the  United  States  have  jurisdic- 
tion. Waring  v.  Clarke,  5  How.  (U.  S.)  R.  441. 

i  Abbott  on  Shipp.  (5th  Am.  Ed.)  282,  et  seq.,  300,  et  seq. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  605 

edy  in  rem,  (which  commences  with  the  arrest  of  the  vessel,) 
and  hold  the  vessel  whose  master  and  crew  have  been  in 
fault,  liable  for  the  payment  of  damages.  It  is  on  this  ac- 
count, that  important  questions  of  collision  more  frequently 
occur  in  Courts  of  Admiralty  than  in  Courts  of  Common 
Law,  though  they  have  occurred  in  both.  The  Admiralty 
jurisdiction  also  extends,  in  cases  of  collision,  alike  to  foreign 
and  domestic  vessels,  and  whether  both  be  foreign  or  both 
be  domestic.  In  a  case  in  the  Court  of  Admiralty  in  Eng- 
land, between  two  foreign  vessels,  which  had  come  into  col- 
lision on  the  Kentish  coast,  an  appearance  was  given  under 
protest,  denying  the  jurisdiction  of  that  Court,  by  the  owners 
of  one  of  them.  The  Court  held,  that  causes  of  collision 
were  communis  juris,  and  had  no  doubt  of  its  jurisdiction  to 
entertain  the  suit,  and,  if  necessary,  to  compel  security  to  be 
given  for  costs.1 

§  610  a.  The  commercial  intercourse  between  different 
States  in  this  country  by  means  of  lake  navigation,  having 
become  extensive,  and  so  important  as  to  fall  within  the 
policy  which  dictated  the  extension  of  the  Federal  Judiciary 
to  cases  of  Admiralty  jurisdiction,  the  act  of  Congress  of 
February  26,  1845,  was  passed,  extending  the  jurisdiction  of 
the  District  Courts  to  "  certain  cases  upon  the  lakes  and 
navigable  waters  connecting  the  same  ;  "  saving,  however, 
to  the  parties,  the  right  of  trial  by  jury  of  all  the  facts  put  in 
issue  in  such  suits,  where  either  party  shall  require  it ;  and 
saving,  also,  to  the  parties  the  right  of  a  concurrent  remedy 
at  the  Common  Law  where  it  is  competent  to  give  it ;  "  and 
any  concurrent  remedy  which  may  be  given  by  the  State 
laws,  where  such  steamer  or  other  vessel  is  employed  in 
such  business  of  commerce  and  navigation."  With  respect 
to  the  nature  and  extent  of  the  jurisdiction  conferred  by  the 
act  in  question,  the  act  itself  declares,  that  "  the  same  juris- 
diction in  all  matters  of  contract  and  tort,  as  is  now  possessed 

i  Ibid.  314 ;  The  Johann  Friederich,  1  W.  Rob.  R.  35. 
51* 


606  LAW   OP    CARRIERS.  [CH.  XII. 

by  the  said  Courts,  (Admiralty)  in  cases  of  the  like  steam- 
boats and  other  vessels  employed  in  navigation  and  com- 
merce upon  the  high  seas  or  tide  waters,  within  the  Admiralty 
and  Maritime  jurisdiction  of  the  United  States  ;  and  in  all 
suits  brought  in  such  Courts,  in  all  such  matters  of  tort  and 
contract,  the  remedies  and  forms  of  process,  and  the  modes  of 
proceeding,  shall  be  the  same  as  are,  or  may  be  used,  by 
such  Courts  in  cases  of  Admiralty  and  Maritime  jurisdiction  ; 
and  the  Maritime  law  of  the  United  States,  as  far  as  the  same 
may  be  applicable  thereto,  shall  constitute  the  rule  of  deci- 
sion in  such  suits."  l  The  act  appears  to  be  limited  in  its 
terms  to  commerce  and  navigation,  carried  on  between 
different  States  and  Territories,  and  thus  appears  not  to 
embrace  cases  arising  out  of  the  commercial  intercourse 
between  American  ports  and  the  neighboring  British  domin- 
ions ;  unless  these  dominions  should  be  adjudged  to  have 
been  intended  by  the  term  "  territories." 

§  611.  It  is  proposed  to  consider,  first,  the  duties  and  lia- 
bilities of  common  carriers  of  passengers  by  water,  in  respect 
to  the  treatment,  accommodation,  Sfc.  of  the  passengers,  as 
those  duties  and  liabilities  have  been  the  subjects  of  adjudi- 
cation under  the  jurisdictions  of  the  Common  Law  and  of 
the  Admiralty ;  and,  secondly,  the  rules  established  under 
each  jurisdiction,  which  furnish  grounds  of  responsibility 
or  excuses  for  damage,  in  case  of  accidents  which  have 
arisen  from  improper  navigation  and  collision  of  vessels. 

§612.  First.  —  The  frequent  and  increasing  intercourse 
by  water,  between  different  portions  of  the  extensive  terri- 
tory of  the  United  States,  and  the  present  very  great  extent 
of  the  intercourse  between  the  United  States  and  distant 
foreign  countries,  has  rendered  that  branch  of  the  law  which 


1  Conklin  on  The  Admiralty  Jurisdiction,  &c. ;  and  see  post,  §  641, 
note. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY    WATER.  607 

relates  to  passenger-ships  and  vessels  of  the  utmost  import- 
ance. That  it  is  the  duty,  as  a  general  rule  of  law,  of  the 
owners  and  masters  of  vessels,  who  hold  themselves  out  as 
carriers  of  passengers,  to  receive  all  persons  who  apply  for 
a  passage,  provided  they  are  unexceptionable  in  character, 
&c.  and  the  fare  be  tendered,  we  have  shown  to  be  unques- 
tionable.1 In  this  respect  there  is  no  difference  between 
carriers  of  passengers  by  water  from  one  place  to  another  in 
the  same  country,  and  carriers  of  passengers  beyond  the  seas. 
In  Bennett  v.  Peninsular  Steamboat  Company,2  the  question 
directly  arose,  whether  a  man  could  be  a  common  carrier  of 
passengers  from  a  place  that  is  within,  to  a  place  that  is  with- 
out, the  realm  ;  that  is,  whether  or  not  the  defendants  were 
common  carriers  of  passengers  for  hire  from  Southampton, 
in  England,  to  Gibraltar,  in  Spain.  It  appeared  on  the  trial 
before  Wild,  C.  J.,  at  the  sittings,  that  the  defendants  were 
the  proprietors  of  certain  steam-vessels,  one  of  which  was 
advertised  by  circulars  issued  by  the  defendants  to  sail  every 
ten  days,  from  Southampton  for  Corunna,  Vigo,  Oporto, 
Lisbon,  Cadiz,  and  Gibraltar,  —  the  circulars  giving  the  times 
of  starting,  and  the  terms  upon  which  passengers  were  to  be 
conveyed  to  those  places  respectively,  and  goods  also,  if 
there  was  room  for  them  ;  that  the  plaintiff  went  to  South- 
ampton, for  the  purpose  of  taking  his  passage  by  the  Mon. 
trose,  the  name  of  one  of  the  defendants'  vessels  ;  but  that, 
in  consequence  of  some  communication  which  had  been  made 
to  the  defendants  by  the  Portuguese  consul,  their  agent 
refused  to  allow  him  to  take  a  passage,  although  it  was  ad- 
mitted that  there  was  plenty  of  room.  It  was  submitted,  on 
the  part  of  the  defendants,  that  the  Common  Law  liability  of 
carriers  did  not  extend  to  carriers  of  passengers,  or  to  extra- 
territorial carriers  ;  and  that  the  company's  circulars  imported 
a  limited,  and  not  a  general,  undertaking  to  carry  passengers. 


1  Ante,  §  525,  et  seq. 

2  Benettt;.  Peninsular  Steamboat  Company,  6  Manr.,  Grang.  &  Scott, 
R.  775. 


608  LAW   OF   CARRIERS.  [cH.  XII. 

The  learned  Judge  left  it  to  the  jury  to  decide  whether  or  not 
there  was  evidence  to  induce  them  to  believe  that  the  defend- 
ants carried  on  the  business  of  common  carriers  for  hire  ;  and 
the  jury  found  in  the  affirmative.  Upon  leave  being  given  to 
the  defendants  to  move  to  enter  the  verdict  for  them,  if  the 
Court^  should  be  of  opinion  that  this  was  not  the  fair  legal 
inference  from  the  evidence ;  it  was  held,  that  the  question 
was  properly  left  to  the  jury,  and  properly  found  by  them  ; 
and  that  the  declaration  of  the  plaintiff,  when  it  calls  the 
defendants  "  common  carriers  of  passengers,"  did  not  mean 
to  allege  that  they  were  carriers  within  the  realm,  and  accord- 
ing to  the  custom  of  the  realm,  but  that  they  were  persons 
who  were  in  the  habit  of  conveying  passengers  for  hire,  from 
England  to  certain  places  beyond  the  seas.1  And  every  person 
taking  passage  is  presumed  to  contract,  in  respect  to  accom- 
modations, &c.  during  the  voyage,  (in  the  absence  of  a 
special  agreement,)  in  reference  to  the  usage  of  the  particu- 
lar voyage.2  In  all  cases  of  commercial  usage,  the  law 
presumes  that  the  parties  contracting  did  not  mean  to  com- 
mit to  writing  the  whole  of  their  contract  by  which  they 
intended  to  be  bound,  but  that  they  contracted  on  the  under- 
standing that  established  usage  should  explain  what  is  left 
doubtful. 

§  613.  In  an  action  against  the  captain  of  a  ship  for  not 
furnishing  good  and  fresh  provisions  to  a  passenger  on  a 
voyage,  Lord  Denman  said,  in  his  address  to  the  jury  :  —  "I 
think  the  result  of  the  evidence  is,  that  the  captain  did  not 
supply  so  large  a  quantity  of  food  and  fresh  provisions  as  is 
usual  under  such  circumstances.  But  there  is  no  real  ground 
of  complaint,  no  right  of  action,  unless  the  plaintiff  has 
really  been  a  sufferer ;  for  it  is  not  because  a  man  does  not 
get  so  good  a  dinner  as  he  might  have  had,  that  he  has, 
therefore,  a  right  of  action  against  the  captain,  who  does  not 

1  See  ante,  $  87,  88. 

2  Ante,  §  533 ;  Abbott  on  Shipp.  (5th  Am.  edit.)  284. 


CH.  XII.]  PASSENGER  CARRIERS — BY  WATER.  609 

provide  all  that  he  ought ;  you  must  be  satisfied  that  there 
was  a  real  grievance  sustained  by  the  plaintiff."  1 

§  614.  In  the  case  of  an  express  contract  between  a  pas- 
senger and  the  master,  the  rights  of  the  parties  will  of  course 
be  governed  by  its  terms ;  for  any  commercial  usage,  how- 
ever well  established,  can  be  of  no  efficacy  to  defeat  the 
plain  meaning  expressed  by  the  parties.  There  have  been 
several  cases  at  Common  Law  of  particular  contracts  in 
respect  to  a  passage  by  sea,  of  the  use  of  which  we  shall 
here  avail  ourselves,  as  they  have  been  collected  and  set 
forth  by  Lord  Tenterden,  in  his  valuable  treatise  on  the  law 
relative  to  merchant-ships,  &c.2 

§  615.  In  the  case  of  Corbin  v.  Leader,3  the  defendant,  the 
master  of  an  East  Indiaman  about  to  sail  from  Calcutta,  on 
a  voyage  to  London,  by  an  agreement  under  seal,  granted 
and  let  to  the  plaintiff  the  whole  of  the  cabins  and  accom- 
modations fitted  up  for  the  reception,  convenience,  and  con- 
veyance of  passengers  on  board  the  ship,  and  the  defendant 
covenanted  to  promote,  as  far  as  in  him  lay,  the  comfort  and 
convenience  of  the  plaintiff  and  such  persons  as  he  should 
engage  and  contract  with,  and  who  should  be  received  as 
passengers  in  and  on  board  the  said  ship  ;  in  consideration 
whereof,  the  plaintiff  covenanted  with  the  defendant,  among 
other  things,  to  pay  the  defendant  the  sum  therein  agreed 
on  ;  and  that  he  would  in  every  respect  support  and  uphold 
the  authority  and  command  of  the  defendant,  and  in  no  way 
interfere  with  the  management  or  navigation  of  the  ship,  or 
with  the  affairs  thereof.  The  plaintiff  further  covenanted, 
that  if  in  the  progress  of  the  voyage  it  should  be  necessary, 
for  the  convenience  and  at  the  request  of  the  plaintiff,  to 
touch  or  put  into  any  other  intermediate  port  or  ports,  save 


1  Young  v.  Fewson,  8  C.  &  Payne,  R.  56. 

2  Abbott  on  Shipp.  ub.  sup.,  284,  et  seq. 

3  Corbin  v.  Leader,  10  Bing.  R.  275. 


610  LAW    OF    CAERIERS.  [cH.  XII. 

and  except  St.  Helena,  he  would  bear  and  pay  all  port  and 
other  necessary  charges  which  might  be  incurred  thereby. 
The  Court  held,  that  this  stipulation  as  to  the  payment  of 
the  charges  of  touching  at  an  intermediate  port,  thus  inter- 
woven with  the  covenant  of  the  defendant,  clearly  showed 
that  stopping  in  the  course  of  the  voyage  was  a  thing  con- 
templated by  the  parties,  as  conducive  to  the  convenience  of 
the  passengers,  and  that  the  defendant  was  bound  so  to  stop 
at  the  request  of  the  plaintiff,  unless  it  would  have  inter- 
fered with  the  safety  of  the  vessel. 

§  616.  In  an  action  of  assumpsit,  by  the  master  of  an 
East  Indiaman  against  a  lieutenant  in  the  Company's  ser- 
vice, who  had  been  his  passenger  on  a  voyage  from  Madras 
to  London,  it  appeared  that  by  an  order  of  the  Court  of 
Directors,  officers  of  that  rank  were  to  pay  one  thousand 
rupees,  and  no  more,  for  "  their  passage,  and  accommoda- 
tion at  the  captain's  table,"  and  this  sum  was  paid  into 
Court.  For  the  plaintiff  it  was  contended,  that  the  defend- 
ant, for  the  regulation  price,  was  only  entitled  to  swing  his 
cot  in  the  steerage,  and  that  he  had  been  allowed  a  cabin  to 
himself,  for  which  the  additional  payment  was  required. 
Evidence  having  been  giving,  that  during  the  voyage  no 
officers  slept  in  the  steerage,  and  that  the  defendant's  cabin 
would  have  remained  empty  had  he  not  occupied  it,  Lord 
Ellenborough  was  of  opinion  that  there  was  nothing  to  raise 
an  implied  promise  to  pay  more  than  the  regular  sum.1 

§  617.  The  case  of  Gillan  v.  Simpkin,  was  an  action  for 
money  had  and  received,  to  recover  passage  money  paid  to 
the  defendant,  as  master  of  a  ship,  in  which  he  had  agreed 
to  carry  the  plaintiff  as  a  passenger  to  Antigua.  The  plain- 
tiff, who  had  paid  the  money  before  the  commencement  of 
the  voyage,  had  intended  to  have  gone  on  board  at  Ports- 
mouth, but  the  luggage  was  shipped  in  the  river  Thames, 

1  Adderley  v.  Cookson,  2  Campb.  R.  15. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY   WATER.  611 

and  in  proceeding  round  from  thence  to  Portsmouth,  the  ship 
was  lost.  It  appeared  in  evidence,  that  it  is  usual  for  the 
passage  money  to  be  paid  in  London,  and  that  the  stores  for 
the  use  of  the  passengers  were  always  put  on  board  in  the 
river.  Chief  Justice  Gibbs,  in  his  direction  to  the  jury,  said, 
"  If  the  money  had  been  to  be  paid  at  the  end  of  the  voyage, 
the  defendant  could  not  have  recovered  any  part  of  it,  there 
being  an  entire  contract  to  carry  the  plaintiff  from  London 
to  Antigua.  But  if  the  voyage  was  commenced,  and  the 
ship  was  prevented  from  completing  it  by  perils  of  naviga- 
tion, the  captain  may  be  entitled  to  retain  the  passage  money 
previously  paid  to  him.  The  contract  for  this  purpose  may 
either  be  express  or  may  be  evidenced  by  established  usage. 
Here  it  is  proved,  that  in  West  India  voyages  the  passage 
money  is  paid  before  the  voyage  commences,  and  it  does  not 
appear  to  be  returned,  although  the  voyage  is  defeated.  On 
the  other  hand,  if  the  ship  were  lost  before  the  commence- 
ment of  the  voyage,  for  which  these  parties  had  contracted, 
the  money  paid  by  anticipation  must  be  returned."  1 

§  618.  The  master  of  a  vessel  sought  to  recover  damages 
from  the  defendant  for  the  breach  of  a  verbal  agreement,  by 
which  he  engaged  two  cabins  on  a  voyage  from  England  to 
Madras  for  a  certain  price.  He  refused  to  go,  because  the 
vessel,  which  was  to  have  left  the  docks  by  the  10th  of 
October,  did  not.  It  was  proved  to  be  the  rule  of  the  East 
India  trade,  that  when  a  passenger  refused  to  go,  in  conse- 
quence of  a  delay  in  the  sailing  of  a  vessel,  he  was  to  forfeit 
half  the  amount  of  the  passage  money  agreed  for.  The 
ship  did  not  leave  the  docks  until  the  21st  of  October. 
"  Chief  Justice  Tindal  directed  the  jury  to  find  for  the 
plaintiff,  with  half  the  passage  money  as  damages,  if  they 
thought  that  the  time  of  sailing  was  matter  of  representa- 
tion, but  not  an  essential  part  of  the  contract,  and  that, 


1  4  Campb.  241  ;  and  see  Leeman  v.  Gordon,  8  Car.  &  P.  392. 


612  LAW   OF   CARRIERS.  [CH.  XII. 

under  the  circumstances,  the  ship  had  sailed  within  a  rea- 
sonable time."  l 

§  619.  In  an  earlier  case,  in  which  the  plaintiff  sought  to 
recover  passage  money  on  an  implied  assumpsit  pro  raid 
itineris  peracli^  it  appeared  that  he  had  contracted  to  carry 
the  defendant,  his  family  and  luggage,  from  Demerara  to 
Flushing,  and  that  in  the  course  of  the  voyage,  and  within 
four  days'  sail  of  Flushing,  the  ship  was  captured  by  an 
English  ship  of  war,  and  brought  to  England.  The  ship 
and  cargo  were  libelled  in  the  Court  of  Admiralty,  and  pro- 
ceedings were  pending  against  the  ship,  but  the  defendant 
and  his  family  were  liberated,  and  his  luggage  restored 
to  his  possession.  The  Court  was  of  opinion,  that  if  the 
ship  had  been  restored,  the  action  might  have  been  main- 
tained, but  that  as  the  result  of  the  proceedings  in  the  Court 
of  Admiralty  might  be  the  condemnation  of  the  ship,  and 
decree  of  her  freight  to  the  captors,  it  was  premature  while 
that  suit  was  pending.2 

§  620.  The  executors  of  an  East  India  captain,  who  had 
died  in  the  East  Indies,  before  the  commencement  of  the 
homeward  voyage,  brought  an  action  against  the  chief  mate 
of  his  ship,  on  whom  the  command  had  devolved,  to  recover 
the  amount  of  the  sum  he  had  received  from  the  passengers 
brought  home  in  the  ship,  for  their  passage  and  entertain- 
ment during  the  voyage.  It  was  contended,  for  the  plaintiff, 
that  the  passage  money  must  belong  to  the  representatives 
of  the  captain  ;  for  the  defendant,  that  he  was  entitled  to 
the  whole,  because  he  had  the  actual  command  during  the 
voyage.  "  If,"  said  Mr.  Justice  Bayley,  "  there  be  no  usage 
on  the  subject,  I  think  the  law  is,  that  where  the  captain 


1  Yates  v.  Duff,  5  Car.  &  P.  569. 

2  Mulloy  v.  Backer,  5  East,  R.  316  ;  and  cited  more  fully  ante,  §  392,  n. 
See  also,  as  to  the  right  of  a  passenger  to  be  carried  to  the  end  of  the 
voyage,  ante,  §  532. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY   WATER.  613 

has  contracted  to  carry  passengers,  and  dies,  his  represent- 
atives are  entitled  to  the  benefit  of  the  contract,  and  may 
maintain  an  action  for  the  passage  money.  If  the  mate  lays 
out  money  in  purchasing  stores  for  such  passengers,  he  is 
the  agent  of  the  representatives  for  that  purpose,  and  may 
oblige  them  to  repay  him.  But  where,  after  the  death  of 
the  captain,  the  mate  contracts  to  carry  passengers  on  the 
homeward  voyage,  he  is  himself  entitled  to  the  benefit  of 
the  contract,  and  may  retain  the  whole  of  the  passage 
money.  If  for  the  entertainment  of  such  passengers  he  has 
any  part  of  the  stores  laid  in  by  the  captain,  for  so  much  he 
must  account  to  the  captain's  representatives."  1 

§  621.  The  master  or  captain  of  a  ship  is  regarded  as 
an  officer,  to  whom  great  power,  momentous  interests,  and 
enlarged  discretion  are,  from  necessity,  confided  ;  and  the 
situations  of  unforeseen  emergency,  in  which  he  may  be 
compelled  to  exert  himself  for  the  preservation  of  the  life 
and  property  with  which  he  is  intrusted  on  the  voyage, 
render  it  necessary  that  he  should  be  invested  with  large, 
and,  for  the  time  at  least,  unfettered  authority.  Obedience 
to  this  authority,  in  all  matters  within  its  scope,  is  a  duty 
which  is  expected  to  be  discharged  by  every  passenger.  On 
the  other  hand,  it  is  his  duty  to  attend  to  the  preservation 
of  the  health  and  comfort  of  the  crew  and  passengers,  as 
well  as  for  the  safety  of  the  vessel  and  cargo.2  In  respect  of 
passengers,  the  case  of  the  master  is  one  of  peculiar  respon- 
sibility and  delicacy,  and  their  contract  with  him  is  a  stipu- 
lation, not  for  toleration  merely,  but  for  respectful  treatment, 
and  for  that  decency  of  demeanor,  which  constitutes  the 
enjoyment  of  social  life  ;  "  for  that  attention,  which  mitigates 
evils  without  reluctance,  and  that  promptitude,  which  admin- 


1  Siordet  v.  Brodie,  3  Campb.  R.  253. 

2  3  Kent,  Comm.  158;  Abbott  on  Shipp.  (5th  Am.  edit.)  152,  note, 
218,  282. 

52 


LAW   OF   CARRIERS.  [CH.  XII. 

isters  aid  to  distress."  1  The  stipulation  in  respect  to  females, 
says  Mr.  J.  Story,  in  the  case  just  referred  to,  proceeds  yet 
farther  ;  "  it  includes  an  implied  stipulation  against  general 
obscenity,  that  immodesty  of  approach  which  borders  on 
lasciviousness,  and  against  that  wanton  disregard  of  feeling, 
which  aggravates  every  evil,  and  endeavors  by  the  excite- 
ments of  terror,  and  cool  malignancy  of  conduct,  to  inflict 
torture  upon  susceptible  minds."  2  In  Chamberlain  v.  Chan- 


1  Per  Story,  J.  in  Chamberlain  v.  Chandler,  3  Mason,  (Cir.  Co.)  R. 
242.     In  a  case  in  the  Circuit  Court  of  the  United  States  for  the  District 
of  Massachusetts,  the  vessel  had  sailed  from  Cork  with  a  large  number  of 
passengers  ostensibly  destined  for  Quebec;  but  on  approaching  the  Ameri- 
can coast,  the  passengers  insisted  upon  being  landed  at  New  York  or 
Philadelphia,  alleging  that  they  had   contracted  with  the  charterer,  to  be 
carried  at  one  of  those  ports.     The  master  refusing  to  comply  with  their 
request,  they  rose  upon  him,  drove  him  down  into  the  cabin  with  violence 
and  threats,  and,  having  compelled  the  mate  to  take  an  oath  that  he  would 
carry  the  vessel  into  one  of  the  above-mentioned  American  ports,  or  into 
Boston,  put  him  in  command.     One  of  the  crew  of  a  fishing  vessel  was 
afterwards  engaged  to  pilot  the  schooner  into  Boston  ;  and  having  per- 
formed this  service,  he  instituted  a  suit  in  the  Admiralty,  against  the 
schooner  to  recover  compensation.    His  demand  was  resisted  on  the  ground 
that  he  came  on  board  the  vessel  at  the  request  of  the  mate  and  passengers, 
who,  it  was  insisted,  had  no  authority  to  bind  her,  and  that  he  must, 
therefore,  look  to  them  for  remuneration  ;  and  so  the  Court  decided.    The 
Ann,  1  Mason,  (Cir.  Co.)  R.  508. 

2  It  was  intimated,  said  the  learned  Judge,  that  such  acts,  though  wrong 
in  morals,  are  yet  acts  which  the  law  does  not  punish  ;  that  if  the  person 
is  untouched  and  the  acts  do  not  amount  to  an  assault  and  battery,  they 
are  not  to  be  redressed.     His  opinion  was,  that  the  law  involved  no  such 
absurdity  ;  "  and  the  law,"  said  he,   "  gives  compensation   for  mental 
sufferings  occasioned  by  acts  of  wanton  injustice,  equally  whether  they 
operate  by  direct,  or  of  consequential,  injuries.     In  each  case,  said  he, 
the  contract  of  the  passengers  for  the  voyage  is  in  substance  violated  ;  and 
the  wrong  is  to  be  redressed  as  a  cause  of  damage.     He  did  not  say,  that 
every  slight  aberration  from  propriety  or  duty,  or  that  every  act  of  unkind- 
ness  or  passionate  folly,  is  to  be  visited  with  punishment ;  but  if  the  whole 
course  of  the  conduct  be  oppressive  and  malicious,  if  habitual  immodesty 
is  accompanied  by  habitual  cruelty,  it  would  be  a  reproach  to  the  law,  if  it 
could  not  award  some  recompense." 


CH.  XII.]  PASSENGER   CARRIERS  —  BY   WATER.  615 

dler,  in  the  Admiralty,1  the  libellants  were  husband,  wife, 
and  children,  who  were  passengers  on  board  ship,  on  a 
voyage  from  Woakoo  to  Boston.  The  libel  was  against  the 
defendant  as  master  of  the  ship,  for  damage  for  alleged  ill 
treatment  and  injuries  to  them  during  the  voyage.  The  evi- 
dence is  not  given  in  the  case,  but,  upon  a  full  examination 
of  it  by  Mr.  J.  Story,  he  came  to  the  conclusion  that  the  libel 
was  sufficiently  proved  to  entitle  the  libellants  to  damages.2 

§  622.  The  treatment  of  the  passenger,  due  from  the 
master,  depends  in  a  great  degree  upon  the  passenger's  con- 
duct and  behavior  during  the  voyage.3  Conduct  in  a  passen- 
ger in  a  ship  on  the  ocean,  which  is  unbecoming  a  gentleman, 
in  the  strict  sense  of  the  word,  will,  it  seems,  justify  the 
captain  in  excluding  such  passenger  from  the  cuddy  table, 
whom  he  has  engaged  by  contract  to  provide  for  there  ; 
though  it  is  difficult  to  define  what  degree  of  indecorum 
would,  in  point  of  law,  warrant  such  exclusion.  It  is  how- 
ever clear,  that  if  a  passenger  use  threats  of  personal  violence 
towards  the  captain,  the  captain  may  exclude  him  from  the 
table,  and  require  him  to  take  his  meals  in  his  own  private 
apartment.  If  the  husband  be  excluded,  and  the  wife,  not 
from  compulsion,  but  from  a  wish  to  be  with  her  husband, 
take  her  meals  with  him  in  private,  this  will  not  amount  to 
a  breach  of  contract  on  the  part  of  the  captain,  so  far  as 
regards  the  wife.  In  Pendergast  v.  Compton,4  the  action 
was  brought  by  the  plaintiff,  a  captain  in  the  army,  against 
the  defendant,  the  captain  of  the  ship  Bolton,  to  recover 
damages  for  the  breach  of  a  contract,  by  which  he  under- 
took to  convey  the  plaintiff  and  his  wife,  as  cuddy  passen- 


1  Ub.  sup. 

2  And  he  accordingly  decreed,  that  the  defendant  shpuld  pay  $400 
damages  (being  the  amount  of  his  share  of  the  passage  money  received 
for  the  passage  of  the  libellants)  and  costs  of  suit. 

3  Ante,  §  532,  533. 

4  Pendergast  v.  Compton,  8  C.  &  Payne,  454. 


616  LAW   OF    CARRIERS.  [cH.  XII. 

gers,  on  a  voyage  from  Madras  to  England.  The  plaintiff's 
complaint  consisted  of  three  particulars  :  first,  that  the  de- 
fendant did  not  treat  him  and  his  wife  as  cuddy  passengers  ; 
secondly,  that  he  did  not  provide  good  and  sufficient  meat, 
drink,  &c.  ;  and,  thirdly,  that  he  excluded  him  from  the 
cuddy,  and  from  walking  on  the  weather  side  of  the  ship. 
Tindal,  C.  J.,  in  summing  up,  said,  —  "  With  respect  to  the 
second  ground  of  complaint,  there  is  scarcely  enough  to  jus- 
tify any  charge  ;  and  as,  on  the  side  of  the  plaintiff,  some 
things  have  been  thought  of  that  would  never  have  been 
thought  of  if  no  other  ground  of  complaint  had  existed  ;  so, 
on  the  other  side,  many  things  have  been  introduced  which, 
under  other  circumstances,  never  would  have  been  referred 
to.  Therefore,  I  think,  you  may  consider  the  question  upon 
the  first  and  third  grounds,  which  seem  very  much  to  stand 
upon  the  same  footing,  the  unfitness  of  the  plaintiff  to  asso- 
ciate with  the  other  passengers.  The  question  for  you  is, 
whether  the  defendant  has  shown  that  he  had  a  good  cause 
of  justification  for  the  exclusion  of  the  plaintiff  from  the 
cuddy,  and  from  certain  parts  of  the  deck.  The  plaintiff 
complains,  that  his  wife  also  was  excluded  from  the  cuddy, 
but  in  fact  she  was  not  excluded,  except  so  far  as  a  proper 
feeling,  on  her  part,  would  lead  her  to  remain  with  her  hus- 
band. The  defendant  rests  his 'defence  on  three  distinct 
grounds,  all  of  which  he  says  operated  on  his  mind  at  the 
time.  First,  he  says  that  the  conduct  of  the  plaintiff  was 
vulgar,  offensive,  indecorous,  and  unbecoming.  There  is 
some  evidence  that  he  was  in  the  habit  of  reaching  across 
othei  passengers,  and  of  taking  broiled  bones  with  his  fingers. 
It  would  be  difficult  to  say,  if  it  rested  here,  in  what  degree 
want  of  polish  would,  in  point  of  law,  warrant  a  captain  in 
excluding  a  passenger  from  the  cuddy.  Conduct  unbecom- 
ing a  gentleman,  in  the  strict  sense  of  the  word,  might  justify 
him  ;  but  in  this  case  there  is  no  imputation  of  the  want  of 
gentlemanly  principle.  The  second  ground  on  which  the 
defendant  relies  is,  the  incident  which  took  place  on  the  19th 
of  July.  The  conversation  on  that  occasion  seems  substan- 


CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  617 

tially  to  be  proved  by  the  different  witnesses,  as  it  is  slated 
in  the  plea,  and  one  cannot  help  thinking,  from  all  the  cir- 
cumstances of  the  case,  that  this  was  the  motive  operating 
on  the  defendant's  mind.  The  third  ground  is,  the  threat 
used  by  the  plaintiff,  that  he  would  cane  the  defendant.  But 
it  does  not  seem  to  me  that  the  threat  was  heard  by  the  de- 
fendant before  he  gave  the  order  for  the  exclusion  of  the 
plaintiff  from  the  cuddy.  I  do  not  see,  upon  the  evidence, 
that  it  was,  but  it  is  for  you  to  say.  It  is  important  to  con- 
sider this,  as,  if  it  did  operate  on  the  mind  of  the  defendant 
at  the  time  of  the  exclusion,  I  cannot  conceive  that  such 
conduct  would  not  justify  that  exclusion.  A  man  who  had 
threatened  the  commanding  officer  of  the  ship  with  personal 
violence,  would  not  be  a  fit  person  to  remain  at  the  table  at 
which  he  presided.  If  the  whole  of  the  defendant's  justifi- 
cation is  made  out,  you  will  find  your  verdict  for  him.  If  it 
is  not  made  out,  you  will  find  your  verdict  for  the  plaintiff, 
and  give  him  such  damages  as  you  think  he  is  entitled  to 

receive." 1 

« 

§  623.  Whatever  is  necessary  for  the  security  of  the 
vessel,  the  discipline  of  the  crew,  the  safety  of  all  on  board, 
the  master  may  lawfully  require,  not  only  of  the  ship's  com- 
pany, who  have  expressly  obligated  themselves  to  obey  him, 
but  of  those  also  whom  he  has  engaged  to  carry  to  their 
destination,  on  the  implied  condition  of  their  submission  to 
his  rule.  But  the  exercise  of  power  thus  undefined  must,  at 
the  master's  peril,  be  restricted  to  the  necessity  of  the  case  ; 
and  on  the  ground  of  such  necessity,  and  within  its  limits, 
he  may  enforce  and  justify  orders,  which  would  otherwise 
expose  him  to  censure,  to  civil  responsibility,  and  to  punish- 
ment.2 A  passenger  who  is  found  on  board  in  time  of  dan- 
ger, is  bound,  at  the  master's  call,  to  do  works  of  necessity 
in  defence  of  the  ship,  if  attacked,  and  for  the  preservation 

1  Verdict  for  the  plaintiff —  Damages  251. 

2  3  Kent,  Comm.  183  ;  Abbott  on  Shipp.  (5th  Am.  ed.)  282. 

52* 


618  LAW   OF   CARRIERS.  [CH.  XII. 

of  the  lives  of  all  on  board.1  Yet,  as  he  may  lawfully, 
except  under  peculiar  circumstances,  leave  the  ship,  should 
he  voluntarily  remain,  at  the  risk  of  his  personal  safety,  to 
assist  in  distress,  he  may  be  entitled  to  remuneration  for  his 
service. 

§  624.  In  an  action  of  assault  and  false  imprisonment  on 
board  an  East  Indiaman,  in  a  voynge  from  Bombay  to  Cal- 
cutta, it  appeared  that  the  plaintiff  was  a  passenger  in  the 
gunner's  mess,  and  that  the  defendant  was  captain  of  the 
ship.  Near  the  Cape  of  Good  Hope,  two  strange  sail  were 
descried  in  the  offing,  supposed  to  be  enemies.  The  defend- 
ant immediately  mustered  all  hands  on  deck,  and  assigned  to 
every  one  his  station.  The  plaintiff,  with  the  other  passen- 
gers, he  ordered  on  the  poop,  where  they  were  to  fight  with 
small  arms.  This  order  all  readily  obeyed,  except  the  plain- 
tiff, who,  conceiving  he  had  been  ill  used  by  the  defendant 
some  time  before,  in  being  forbidden  to  walk  on  the  poop, 
positively  refused  to  go  there,  but  offered  to  fight  in  any 
other  part  of  the  ship  with  his  messmates.  The  defendant, 
for  this  contumacy,  ordered  him  to  be  carried  upon  the  poop, 
and  there  kept  him  in  irons  during  the  whole  night.  Next 
morning  no  enemy  appeared,  and  the  ship  arrived  safe  at 
St.  Helena,  where  the  plaintiff  quitted  her.  Lord  Ellenbo- 
rough,  at  first,  said  that  he  did  not  know  that  the  confinement 
of  the  plaintiff  was  not  necessary,  and  therefore  justifiable  ; 
but  when  it  came  out  that  he  had  been  kept  all  night  in  irons 
on  the  poop,  he  clearly  held  that  the  defendant  had  exceeded 
the  limits  of  his  authority.2 

§  625.  The  master  of  a  vessel  who  undertakes  to  convey 
passengers  for  a  reward,  is  of  course  bound  to  carry  them 
safely,  to  the  end  of  the  voyage,  and  to  this  end  it  is  incum- 


1  Newman  v.  Walters,  3  Bos.  &  Pull.  R.  612. 

2  Boyce  t>.  Bayliffe,  1  Campb.  R.  58. 


CH.  XH.]  PASSENGER   CARRIERS  —  BY   WATER.  619 

bent  upon  him,  as  we  have  seen,  to  exercise  the  utmost  care  ; l 
but  no  evidence  can  be  given  of  a  specific  act  of  negligence 
which  is  not  the  foundation  of  a  suit.  In  an  action  for  negli- 
gently steering  a  ship,  whereby  she  was  wrecked,  and  the 
plaintiff  lost  his  passage  in  her,  the  first  count  in  the  declara- 
tion stated,  that  the  defendants  were  the  owners  of  the  ship 
A.,  and  that  the  plaintiff  took  his  passage  in  that  ship  from 
Madras  to  London,  and  paid  his  passage  money ;  and  that 
it  became  the  defendant's  duty  to  convey  him  safely ;  yet 
that,  by  reason  of  the  negligence  of  the  defendants  and  their 
servants,  the  ship  was  wrecked  ;  and  that  the  plaintiff  was 
injured  by  having  to  pay  a  passage  in  another  ship,  and  was 
delayed  for  the  same.  An  officer  in  the  navy,  who  was  a 
passenger  in  the  A.,  was  called  to  prove  the  negligence  of 
the  captain  and  crew.  He  was  proceeding  to  state  their 
negligent  conduct  at  an  earlier  part  of  the  day,  on  which  the 
accident  happened,  but  Abbott,  C.  J.,  held,  no  evidence  could 
be  given  of  a  specific  negligence  which  was  not  the  ground 
of  the  plaintiff's  action.  The  witness  was  then  asked  who 
had  the  charge  of  the  watch  at  the  time  the  ship  was  wreck- 
ed, and  he  stated  that  it  was  the  second  mate ;  and  that  he 
had,  both  before  and  after  the  wreck,  heard  the  captain  say, 
that  the  second  mate  was  wholly  incompetent  to  have  the 
charge  of  the  watch.2  Objections  being  made  to  these  state- 
ments of  the  captain  being  received  in  evidence,  the  learned 
Judge  said  he  must  receive  the  evidence ;  the  captain,  he 
said,  "  leaves  the  ship  in  the  charge  of  a  person  he  himself 
considers  incompetent :  this  is  certainly  evidence  of  negli- 
gence on  his  part."  Evidence  was  given  that,  for  some 
hours  before  the  wreck,  the  ship  was  within  a  bay,  and  no 
soundings  were  made,  nor  lookout  kept ;  which  evidence 
was  confirmed  by  many  witnesses.  Evidence  was  also 
given  of  the  expense  and  loss  incurred  by  the  plaintiff'  in 


1  Ante,  §  523,  558.     See  ante,  $  532. 

2  See  ante,  $  540,  541,  542. 


620  LAW   OP   CARRIERS.  [CH.  XII. 

consequence  of  the  wreck.  A  witness  was  then  called,  who 
stated  he  had  been  a  master  in  the  navy  for  seventeen  years, 
and  the  plaintiff's  counsel  wished  to  ask  him,  as  a  man.  of 
experience  in  nautical  matters,  whether,  supposing  the  facts 
as  proved  to  have  occurred,  they  showed  negligence  in  the 
captain.  This  was  objected  to  ;  but  the  learned  Judge  held, 
that  the  plaintiff's  counsel  might  state  to  the  witness  what 
had  been  done,  and  might  ask  him  if  a  man  of  competent 
skill  would  have  done  so.  The  defence  was,  that  there  was 
no  negligence  ;  and  to  prove  this,  the  captain,  chief  mate, 
and  some  of  the  crew  (having  been  released,)  *  were  called. 
The  question  of  negligence,  or  no  negligence,  was  left  to  the 
jury,  and  they  gave  a  verdict  for  the  plaintiff.2 

§  626.  In  England,  Parliament  has  by  various  statutes, 
applicable  to  different  voyages,  interposed  to  protect  unwary 
emigrants  from  the  fraud  and  cupidity  of  unprincipled  ship- 
owners.3 Besides  security  for  the  seaworthiness  of  the  ship, 
those  statutes  provide  for  a  due  proportion  between  her 
tonnage  and  the  number  of  her  passengers.  In  the  United 
States,  by  an  act  of  Congress  of  2d  March,  1819,  ch.  176,  it 
is  provided,  "  §  1.  That  if  the  master,  or  other  person  on 
board  of  any  ship  or  vessel,  owned  in  the.  whole  or  in  part 
by  a  citizen  or  citizens  of  the  United  States,  or  the  territories 
thereof,  or  by  a  subject  or  subjects,  citizen  or  citizens,  of  any 
foreign  country,  shall,  after  the  first  day  of  January  next, 
take  on  board  of  such  ship  or  vessel,  at  any  foreign  port  or 
place,  or  shall  bring  or  convey  into  the  United  States,  or  the 
territories  thereof,  from  any  foreign  port  or  place ;  or  shall 
carry,  convey,  or  transport,  from  the  United  States,  or  the 
territories  thereof,  to  any  foreign  port  or  place,  a  greater 


1  See  ante,  $  469. 

2  Malton  v.  Nesbit,  1  C.  &  Payne,  R.  70. 

3  Abbott  on  Shipp.  (5th  Am.  ed.)  283,  289,  et  seq. ;  and  see  The  Two 
Friends,  1  Rob.  (Adm  )  R.  285  ;  The  Beaver,  3  Ibid.  292 ;  The  Joseph, 
1  Ibid.  306,  cited  in  Abbott,  supra. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY   WATER.  621 

number  of  passengers  than  two  for  every  five  tons  of  such 
ship  or  vessel,  according  to  custom-house  measurement ; 
every  such  master,  or  other  person  so  offending,  and  the 
owner  or  owners  of  such  ship  or  vessel,  shall  severally  forfeit 
and  pay  to  the  United  States  the  sum  of  one  hundred  and 
fifty  dollars,  for  each  and  every  passenger  so  taken  on  board 
of  such  ship  or  vessel,  over  and  above  the  aforesaid  number 
of  two  to  every  five  tons  of  such  ship  or  vessel ;  to  be  recov- 
ered by  suit  in  any  Circuit  or  District  Court  of  the  United 
States,  where  the  said  vessel  may  arrive,  or  where  the  owner 
or  owners  aforesaid  may  reside  ;  provided,  nevertheless,  that 
nothing  in  this  act  shall  be  taken  to  apply  to  the  complement 
of  men  usually  and  ordinarily  employed  in  navigating  such 
ship  or  vessel.  §  2.  That  if  the  number  of  passengers  so 
taken  on  board  of  any  ship  or  vessel  as  aforesaid,  or  con- 
veyed or  brought  into  the  United  States,  or  transported 
therefrom  as  aforesaid,  shall  exceed  the  said  proportion  of 
two  to  every  five  tons  of  such  ship  or  vessel,  by  the  number 
of  twenty  passengers,  in  the  whole,  every  such  ship  or  vessel 
shall  be  deemed  and  taken  to  be  forfeited  to  the  United 
States,  and  shall  be  prosecuted  and  distributed  in  the  same 
manner  in  which  the  forfeitures  and  penalties  are  recovered 
and  distributed  under  the  provisions  of  the  act,  entitled,  '  An 
Act  to  regulate  the  collection  of  duties  on  imports  and  ton- 
nage.' " 

§  627.  To  subject  a  vessel  to  forfeiture  according  to  the 
provisions  of  the  above  act,  there  must  be  an  excess  of 
twenty  passengers,  beyond  the  proportion  of  two  to  every 
five  tons  of  the  vessel ;  and  in  estimating  the  number  of 
passengers  under  the  act,  no  deduction  is  to  be  made  for 
children,  or  persons  not  paying ;  but  those  employed  in 
navigating  the  vessel  are  not  to  be  included.1  In  reply  to 
the  argument,  urged  in  the  case  just  referred  to,  that  child- 
ren, especially  those  of  a  very  tender  age,  and  all  non- 

1  United  States  v.  The  Louisa  Barbara,  Gilp.  R.  332. 


622  LAW   OF   CARRIERS.  [CH.  XII. 

paying  passengers,  are  not  within  the  object  of  the  law,  and 
the  evil  to  be  prevented  by  it,  and  therefore  could  not  be 
taken  to  be  a  part  of  the  number  of  passengers  to  be  allowed 
by  the  law,  Judge  Hopkinson  said :  "  If  we  were  to  make 
these  deductions  of  children  and  unpaid  persons  on  board  of 
a  vessel  from  the  number  of  her  passengers,  we  should  find 
no  warrant  for  it,  in  the  law,  and  throw  the  construction  of 
the  act  into  such  uncertainty,  as  would  render  it  little  better 
than  a  nugatory  attempt  at  legislation.  In  regard  to  child- 
ren, we  should  be  obliged  to  fix  the  age  at  which  they 
might  not  be  considered  as  passengers  within  the  act,  and 
the  question  of  payment  would  often  be  as  difficult  to  settle. 
The  inconvenience  to  health  and  life  from  crowded  vessels, 
are  the  same,  whether  the  persons  on  board  pay  or  do  not 
pay  their  passages  ;  and  although  it  may  not  be  probable 
that  the  owners  of  vessels  will  bring  passengers  for  nothing, 
yet  the  law  may  be  evaded  and  defeated  by  secret  artifices 
and  agreements  on  the  subject  of  compensation  for  the  pas- 
sage, if  it  is  to  be  understood  that  paying  passengers  only 
are  within  the  law.  The  payment  would  thus  become  a 
part  of  the  case  of  the  prosecution ;  and  legal  proof  would 
be  required  of  it."  In  estimating  the  tonnage  of  a  vessel, 
bringing  passengers  from  a  foreign  country,  the  measure- 
ment of  the  custom-house,  in  the  port  of  the  United  States 
at  which  the  vessel  arrives,  is  to  be  taken.1 

§  628.  The  above-mentioned  act  of  Congress  also  pro- 
vides, that  every  vessel  bound  on  a  voyage  from  the  United 
States  to  any  port  on  the  continent  of  Europe,  at  the  time 
of  leaving  the  last  port  whence  such  vessel  shall  sail,  shall 
have  on  board,  well  secured  under  deck,  at  least  sixty  gallons 


1  Ibid.  In  England,  a  list  of  passengers  is  to  be  delivered  before  clear- 
ing to  the  collector,  or  other  chief  officer  of  the  customs,  at  such  port  or 
place  as  may  clear  the  ship,  and  a  list  also  of  additional  passengers,  after 
clearing  out.  Abbott  on  Shipp.  292.  A  similar  provision  exists  in  the 
act  of  Congress,  of  2d  March,  1819,  ch.  170,  §  4. 


CH.  XII.]  PASSENGER   CARRIERS —  BY  WATER.  623 

of  water,  one  hundred  pounds  of  salted  provisions,  one  gallon 
of  vinegar,  and  one  hundred  pounds  of  wholesome  ship  bread, 
for  each  and  every  passenger  on  board  of  such  vessel,  over 
and  above  such  other  provisions,  stores,  and  live  stock,  as 
may  be  put  on  board  by  such  master  or  passenger  for  their 
use,  or  that  of  the  crew  ;  and  in  like  proportion  for  a  shorter 
or  longer  voyage.  And  if  the  passengers,  on  board  of  such 
vessel  in  which  the  proportion  of  the  provisions  directed, 
shall  not  have  been  provided,  shall  at  any  time  be  put  on 
short  allowance,  in  any  of  the  articles  enumerated,  the 
master  and  owner  of  such  vessel  shall  severally  pay  to  each 
and  every  passenger,  who  shall  have  been  put  on  short 
allowance,  the  sum  of  three  dollars  for  each  and  every  day 
they  may  have  been  on  such  short  allowance.  The  penalty 
to  be  recovered  in  the  same  manner,  as  seamen's  wages  are, 
or  may  be  recovered. 

§  628  a.  A  later  act  of  Congress,  of  1847,  limits  the 
number  of  passengers  to  be  taken  on  board  vessels  owned 
by  citizens  of  the  United  States,  or  by  those  of  any  foreign 
country,  at  any  foreign  port,  in  proportion  to  the  space  occu- 
pied by  them  and  appropriated  for  their  use,  and  unoccupied 
by  stores  or  other  goods,  where  the  intent  is  to  bring  such 
passengers  to  the  United  States  ;  and  the  act  extends  also, 
to  the  taking  of  passengers  on  board  within  the  jurisdiction 
of  the  United  States  ;  and  likewise  provides  for  the  arrange- 
ment, construction,  and  dimensions  of  the  berths.1  A  still 
later  act,  of  1848,  was  passed  for  the  proper  ventilation  of 
passenger  vessels,  prescribing  also  the  quantity  of  provisions 
and  water,  and  in  amendment  of  the  first  section  of  the  act 
last  before  mentioned.2  And  again,  in  1849,  was  an  act 


1  Acts  of  2nd  session  of  the  29th  Congress,  (chap.  16,)  p.  19,  and  see 
the  Act  in  the  Appx.  p.  Ixxvi. 

2  Acts  of  the  1st  session  of  the  30th  Congress,  (chap.  41,)  p.  24. 
This  act  provides  also  for  other  important  objects.     See  the  Act  in  the 
Appx.  p.  Ixxvii. 


624  LAW   OF   CARRIERS.  [cH.  XII. 

passed  extending  the  provisions  of  laws  then  in  force  relating 
to  the  carriage  of  passengers.1 

§  629.  The  safety  of  passengers  on  board  of  steam-vessels 
has  also  been  the  subject  of  legislation  by  Congress  ;  and  it 
has  been  a  duty  imposed  by  Congress  upon  the  District 
Judge,  within  whose  district  there  are  ports  of  entry  or 
delivery,  upon  the  application  of  the  master  or  owner  of 
any  vessel  propelled  by  steam,  to  appoint  one  or  more 
competent  persons  to  make  inspection  of  such  vessels,  and 
of  the  boilers  and  machinery  ;  and  the  inspectors  are  to  give 
certificates  of  their  inspection,  as  enjoined  by  the  act.  The 
most  important  provision  of  the  laws  referred  to,  and  one 
well  intended  to  secure  the  end  in  view,  is  that  the  captain, 
engineer,  pilot,  and  all  other  persons  employed  on  board 
steam-vessels,  by  whose  misconduct  or  inattention  the  life  of 
any  person  on  board  may  be  destroyed,  shall  be  deemed 
guilty  of  manslaughter.  But  for  this,  and  many  other  pro- 
visions of  importance  to  the  public,  and  to  the  owners,  mas- 
ters, and  engineers  of  steam-vessels,  which  are  intended  to 
secure  the  safety  of  all  persons  taking  passage  in  steam-ves- 
sels, the  reader  is  referred  to  the  two  acts  of  Congress  on 
the  subject,  which  have  been  referred  to,  and  which  are  con- 
tained in  our  Appendix.2  The  safety  of  passengers  by  steam- 
vessels  has  also  received  the  attention  of  the  legislature  of 
the  State  of  New  York,  who  have  passed  an  act  requiring 
steamboats  or  vessels  driven  by  steam  navigating  the  waters 
of  that  State  to  carry  small  boats  for  the  protection  of  life  in 
case  of  accident ;  and  every  violation  of  the  provisions  of 
the  act  is  made  punishable  by  fine  not  less  than  two  hundred 
and  fifty  dollars,  recoverable  against  the  captain  of  the  boat 
or  vessel,  or  the  owner  or  owners  of  either  of  them.3 

1  Acts  of  the  2nd  session  of  the  30th  Congress,  (chap.  3,)  p.  107,  and 
see  the  Act  in  the  Appx.  p.  Ixxxii. 

2  Appx.  p.  Ixxxiv. 

3  Act  to  take  effect  from  June  1,  1849,  contained  in  Hunt's  Merchants' 
Mag.  for  June,  1849,  p.  656. 


CH.  XII. J  PASSENGER  CARRIERS — BY  WATER.  625 

§  630.  In  the  construction  of  a  State  law  in  New  York,1 
it  has  been  held,  that,  in  passing  the  Erie  and  Champlain 
canalsj  freight  boats  are  bound  to  afford  every  facility  for 
the  passage  of  packet  boats,  as  well  through  the  locks,  as 
elsewhere  on  the  canal.  And  where  a  freight  boat  passing 
on  the  Erie  canal  was  waiting  for  the  emptying  of  a  lock, 
when  a  packet  boat  overtook  her,  it  was  held,  that  the 
packet  boat  should  pass  first.  On  request,  the  master  of 
the  freight  boat,  refusing  to  consent  to  this,  the  master  of  the 
packet  may  use  all  necessary  means  to  obtain  the  preference 
due  to  him,  short  of  a  breach  of  the  peace  ;  as,  by  pulling 
back  the  freight  boat,  and  forcing  his  own  forward,  doing  no 
unnecessary  damage  to  the  freight  boat.  Should  the  freight 
boat  be  detained  or  injured,  through  the  obstinate  resistance 
of  the  master  to  the  exercise  of  the  right  of  preference  of  the 
packet ;  this  is  the  fault  of  the  former,  for  which  he  cannot 
recover  damages  against  the  master  of  the  latter.2 

§  631.  On  many  occasions  the  important  question,  whether 
certain  State  laws  conflicted  with  the  power  of  Congress  to 
regulate  commerce,  has  been  agitated  and  decided;  and 
among  the  instances  of  that  kind  which  have  occurred,  there 
are  two  which  relate  to  passengers  brought  to  our  shores  in 
vessels  from  abroad.  By  one  of  the  provisions  of  a  law 
passed  by  the  legislature  of  the  State  of  New  York,3  the 
master  of  every  vessel  arriving  in  New  York  from  any 
foreign  port,  or  from  a  port  of  any  of  the  States  of  the  United 
States,  other  than  New  York,  is  required,  under  certain 
penalties  prescribed  in  the  law,  within  twenty-four  hours 


1  Of  April  30,  1820,  sess.  43,  ch.  202,  s.  4  and  10. 

2  Farnsworth  v.  Groot,  6  Cow.  (N.  Y.)  R.  698.     For  the  construction 
of  the  by-laws  of  a  village,  regulating  wharves  and  basins  on  the  Erie 
Canal,  see  Lamed  v.  The  Trustees  of  the  Village  of  Syracuse,  5  Wend. 
(N.  Y.)  R.  166. 

3  In  February,  1824,  entitled  "An  Act  concerning  passengers  in  vessels 
arriving  in  the  port  of  New  York." 

53 


626  LAW    OP    CARRIERS.  [CH.  XII. 

after  his  arrival,  to  make  a  report  in  writing,  containing  the 
names,  ages,  and  last  legal  settlement  of  every  person  who 
shall  have  been  on  board  the  vessel  commanded  by  him 
during  the  voyage  ;  and  if  any  of  the  passengers  shall  have 
gone  on  board  any  other  vessel,  or  shall,  during  the  voyage, 
have  been  landed  at  any  place  with  a  view  to  proceed  to 
New  York,  the  same  shall  be  stated  in  the  report.  The 
Corporation  of  the  city  of  New  York  instituted  a  suit  (an 
action  of  debt)  under  that  law  against  the  master  of  a  ship, 
for  the  recovery  of  certain  penalties,  imposed  by  the  act,  on 
the  ground  that  he  did  not  report  as  required.  The  Circuit 
Court  were  divided  in  opinion  on  the  following  point,  which 
was  certified  to  the  Supreme  Court  of  the  United  States  : 
"  That  the  act  of  the  legislature  of  New  York  assumes  to 
regulate  trade  and  commerce  between  the  port  of  New  York 
and  foreign  ports,  and  is  unconstitutional  and  void."  The 
supreme  Court  directed  it  to  be  certified  to  the  Circuit  Court 
of  New  York,  that  so  much  of  the  section  of  the  act  of  the 
legislature  of  New  York  as  applied  to  the  breaches  set  forth, 
did  not  assume  to  regulate  commerce  between  the  port  of 
New  York  and  foreign  ports ;  and  that  so  much  of  the  act  in 
question  was  constitutional.  The  opinion  of  the  Court  was 
delivered  by  Mr.  Justice  Barbour,  who  considered  the  act  of 
the  legislature  of  New  York,  not  a  regulation  of  commerce, 
but  of  internal  police ;  and  hence  it  was  passed  in  the  exer- 
cise of  a  power  which  rightfully  and  constitutionally  belonged 
to  the  State.  The  intention  of  the  law  was  viewed  as  intend- 
ing to  prevent  the  State  being  burdened  with  an  influx  of 
foreigners,  and  to  prevent  their  becoming  paupers,  and  who, 
as  such,  would  become  chargeable.  It  was  not  only  the 
right,  but  the  bounden  duty  of  a  State,  to  advance  the  safety, 
happiness,  and  prosperity  of  its  people,  and  to  provide  for  its 
general  welfare,  by  an  Act  of  legislation  which  it  may  deem 
to  be  conducive  to  these  ends,  where  the  power  over  the 
particular  subject,  or  the  manner  of  its  exercise,  are  not  sur- 
rendered or  restrained  by  the  constitution  of  the  United  States. 
From  this  opinion,  however,  Mr.  Justice  Story  dissented,  and 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  527 

in  support  of  his  argument  to  the  contrary,  he  relied  on  the 
opinion  of  Mr.  Chief  Justice  Marshall,  in  Gibbons  v.  Ogden,1 
within  the  principles  established  by  which  case,  he  contended, 
the  case  before  the  Court  directly  fell.2 

§  632.  Again,  at  the  late  term  of  the  Supreme  Court  of 
the  United  States,3  Mr.  Justice  McLean  gave  the  opinion  of 
the  majority  of  the  Court  in  Smith  v.  Turner,  in  error  from 
the  Supreme  Court  of  New  York,  against  the  constitution- 
ality of  the  statute  of  that  State  imposing  a  tax  upon  alien 
passengers,  on  the  ground  that  it  was  a  law  regulating  com- 
merce. The  case  was  distinguished  from  the  above  case  of 
the  City  of  New  York  v.  Miln,  inasmuch  as  the  latter  was 
determined  upon  the  ground  that  the  law  there  in  question 
operated  within  the  State  of  New  York,  and  that  it  imposed 
no  obstruction  to  commerce,  nor  caused  any  delay.  A  sim- 
ilar statute  of  the  State  of  Massachusetts  was  at  the  same 
time  held  to  be  unconstitutional  and  void.4 


1  Gibbons  v.  Ogden,  9  Wheat.  (U.  S.)  R.  1. 

2  City  of  New  York  ».  Miln,  11  Peters,  (U.  S.)  R.  102.     There  was 
no  collision,  it  was  held  by  the  Court,  between  the  section  of  the  Act  of 
New  York,  on  which  this  suit  was  brought,  and  the  provisions  of  the  laws 
of  the  United  States  of  1799,  or  1819,  relating  to  passengers. 

3  At  the  December  Term,  1848. 

4  At  this  time  a  report  of  the  decision  has  not  been  published  by  the 
Reporter  of  the  Court ;  but  in  a  report  contained  in  the  Boston  Atlas  of 
Feb.  12,  1849,  (which  the  Editor  says,  is  from  a  legal  gentleman,  and 
may  be  relied  on,)  there  is  the  following  abstract  of  the  opinion  of  Mr. 
Justice  McLean  :  —  1.  Is  the  power  of  Congress  to  regulate  commerce  an 
exclusive  power?     2.  Is  the  Statute  of  New  York  a  regulation  of  com- 
merce ?     First :  It  is  admitted  that  the  States  have  not  parted  with  any 
power,  except  by  express  grant  in  the  Constitution,  or  by  necessary  impli- 
cation.    All  powers  which  concern  our  foreign  relations  belong  to  the 
Federal  Government  exclusively.     A  review  of  the  opinions  of  Judges  in 
all  the  cases  in  which  the  question  has  arisen,  leads  to  this  result.     C.  J. 
Marshall,  Judges  Baldwin,  Johnson,  and  Story,  in  various  cases,  are  cited 
to  show  this.     There  cannot  be  a  concurrent  power  in  two  sovereignties  to 
regulate  the  same  subject.     It  would  involve  an  absurdity,  and  produce 
inevitable  collisions.    The  power  then,  over  commerce,  is  exclusively 


628  LAW    OF   CARRIERS.  [CH.  XII. 

§  633.  Secondly,  as  to  collision,  and  of  the  Common  and 
Maritime  Law  respecting  it.     The  misfortune  of  a  collision 


vested  in  Congress.  Next :  Is  the  law  of  New  York  a  regulation  of  com- 
merce 1  The  States  may  guard  against  the  introduction  of  anything 
•which  may  affect  the  health  or  morals  of  their  citizens  ;  but  they  are  lim- 
ited to  what  may  be  absolutely  necessary  for  that  purpose.  Commerce  in- 
cludes navigation  and  intercourse  as  well  as  the  exchange  of  commodities, 
and  therefore  includes  the  transportation  of  passengers.  To  encourage 
foreign  emigration  was  part  of  the  early  policy  of  our  government ;  and  a 
large  amount  of  tonnage  has  always  been  engaged  in  the  carrying  of  pas- 
sengers. Pilot  laws  are  regulations  of  commerce,  and  the  State  laws  have 
become  the  laws  of  Congress  by  adoption.  The  act  of  Congress  expressly 
adopts  them.  They  are  not  laws  by  force  of  any  State  power.  A  State 
may  do  many  things  which  affect  commerce,  though  it  may  not  regulate  it. 
It  may  tax  a  ship  belonging  to  a  citizen  ;  but  it  is  vhen  taxed  as  part  of  the 
general  property  of  the  State.  The  act  of  New  York  is  called  a  health 
law.  The  funds  collected  are  called  Hospital  money.  But  it  is  difficult 
to  see  how  it  can  be  a  health  law.  Part  of  the  funds  go  to  support  insti- 
tutions for  juvenile  offenders,  and  it  might  as  well  be  applied  to  all  the 
general  purposes  of  the  State.  It  might  be  increased  so  as  to  pay  all  ex- 
penses. The  decision  in  the  case  of  New  York  v.  Miln,  is  entirely  con- 
sistent with  these  views.  That  case  was  decided  upon  the  ground  that 
the  law  only  operated  within  the  State  of  New  York.  It  imposed  no  ob- 
struction to  commerce,  nor  caused  any  delay.  The  transportation  of  pas- 
sengers is  regulated  by  acts  of  Congress ;  and  being  a  branch  of  commerce, 
the  act  of  New  York  is  a  regulation  of  it,  and  therefore  void.  After  pas- 
sengers have  left  the  ship  and  mingle  with  the  citizens  of  the  States,  then 
they  may  be  taxed.  A  tax  like  this  destroys  the  uniformity  which  ought 
to  exist  throughout  the  Union.  The  municipal  power  of  the  States  can- 
not prohibit  the  introduction  of  passengers,  except  to  protect  itself  against 
disease.  This  Court  had  decided,  in  the  case  of  Groves  and  Slaughter, 
arising  in  Mississippi,  that  the  Slave  States  had  the  power  of  prohibiting 
the  introduction  of  slaves  as  merchandise ;  but  Judge  McLean  omitted  to 
make  any  allusion  to  the  introduction  of  free  persons  of  color  into  their 
ports.  Congress  has  passed  acts  in  aid  of  the  State  regulations  of  quar- 
antine, and  thus  they  have  become  regulations  by  Congress  itself.  If 
New  York  may  thus  tax  passengers,  citizens  of  the  United  States  as  well 
as  foreigners,  then  every  other  State  may  do  the  same  on  every  railroad 
and  river  throughout  the  Union.  Perhaps  nine  tenths  of  the  passengers 
landed  at  New  York  pass  through  to  other  places.  The  police  power  can- 
not pass  beyond  its  proper  limits.  In  guarding  the  health  of  its  citizens, 
it  cannot  authorize  a  tax  which  regulates  commerce.  For  these  reasons 


CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  629 

of  one  vessel  with  another  may  be  the  result  of  inevitable 
accident,  or  of  circumstances  beyond  the  control  of  the 
master,  however  mindful  he  may  be  of  his  responsibility,  as 
by  the  violence  of  the  wind  and  sea.  It  may  be  accidental, 
therefore,  without  fault  on  either  side,  or  it  may  proceed  from 
the  negligence  or  unskilfulness  of  one  or  both  the  captains 
whose  vessels  come  into  collision.1  Where  an  injury  occa- 
sioned by  a  collision  happens  to  one  or  both  vessels,  and  is 
in  consequence  of  mutual  default,  the  apportionment  of  dam- 
ages is  different  in  the  Admiralty  from  what  it  is  at  Common 
Law.  Neither  party,  we  have  seen,  can  sue  at  Common 
Law,  where  damage  is  occasioned  partly  by  the  default  of 
one  party,  and  partly  by  that  of  the  other ;  and  if,  in  the 
opinion  of  the  jury,  the  default  of  one  parly  in  any  way  con- 
curred in  causing  the  damage  in  question,  he  is  not  entitled 
to  recover.2  The  rule  of  justice  adopted  by  the  Admiralty 
in  such  cases,  is,  that  the  loss  shall  be  apportioned  between 
the  parties  according  to  circumstances. 

§  634.  A  Court  of  Common  Law,  whether  for  its  inability 
to  adapt  its  judgment  to  cases  of  damage  occasioned  by  col- 
lision of  vessels  from  mutual  negligence,  or  for  any  other 
cause,  refuses  to  interfere  at  all.3  In  Kent  v.  Elstob,  in  the 
King's  Bench,4  a  rule  has  obtained  for  setting  aside  an  award 


Judge  McLean  declared  the  act  of  New  York  void  ;  and  for  the  same  rea- 
sons the  act  of  Massachusetts  is  also  declared  void.  Chief  Justice  Taney, 
and  Jusiices  Daniel,  Woodbury,  and  Nelson,  concurred  in  sustaining  the 
laws  of  the  States.  Mr.  Webster  in  the  Senate,  and  Mr.  Ashmun  in  the 
House,  moved  in  the  matter,  and  offered  resolutions  of  inquiry  into  the 
legislation  which  may  be  necessary  in  consequence  of  this  decision. 

1  See  Abbott  on  Shipp.  (5th  Am.  Ed.)  300,  et  seq.  For  the  law  in 
relation  to  the  collision  of  vessels  of  common  carriers  of  goods  and  merchan- 
dise by  sea,  see  ante,  $  166,  and  226,  and  Plaisted  t>.  Boston  and  Kenne- 
bec  Steam  Navigation  Co.  14  Shep.  (Me.)  R.  132. 

9  Anle,  $  556,  et  seq. 

3  Per  Gibson,  J.,  in  Simpson  v.  Hand,  6  Whart.  (Penn.)  R.  311. 

*  Kent  v.  Elstob,  3  East,  R.  18. 
53* 


630  LAW   OF   CARRIERS.  [cH.  XII. 

of  an  arbitration,  in  a  case  for  negligently  running  down  the 
plaintiff's  ship  by  another  ship  belonging  to  the  defendants, 
on  the  ground  of  a  mistake  of  the  arbitrator  in  point  of  law. 
The  alleged  mistake  was  in  awarding  any  damage  to  the 
plaintiff,  when  it  appeared  by  his  own  showing,  that  either 
no  negligence  was  imputable  to  the  defendants,  which  was 
the  gist  of  the  action,  or  that  at  least  the  accident  happened 
as  much  from  the  fault  of  one  as  the  other.  For  these 
reasons  it  was  held,  the  award  could  not  be  supported, 
Grose,  J.,  saying,  that  "  it  is  evident  that  he  (the  arbitrator) 
meant  to  determine  according  to  law,  and  he  was  mistaken 
in  it ;  therefore,  the  award  is  riot  such  as  he  intended  it  to 
be." 

§  635.  Lord  Tenterden,  in  two  cases  at  Nisi  Prius,  has 
laid  down  the  doctrine  of  the  Common  Law  applicable  to 
cases  of  damage  by  a  collision  of  vessels,  where  the  damage 
has  been  in  consequence  of  mutual  negligence.  In  Vander- 
plank  v.  Miller,1  which  was  a  "running  down"  case,  that 
learned  Judge,  in  summing  up  to  the  jury,  said  :  "  If  there 
was  want  of  care  on  both  sides,  the  plaintiffs  cannot  maintain 
their  action  ;  to  enable  them  to  do  so,  the  accident  must  be 
attributable  entirely  to  the  fault  of  the  crew  of  the  defend- 
ants." On  another  occasion,  at  Nisi  Prius,  in  an  action  for 
the  negligence  of  the  defendant's  servant  in  managing  his 
barge,  whereby  the  plaintiff's  barge  was  run  down  and  sunk, 
Lord  Tenterden  said  :  "  The  plaintiff,  in  this  case,  complains 
of  an  injury  to  his  barge  through  the  negligence  of  the  de- 
fendant's servants.  If  the  accident  happened  from  the  state 
of  the  tide,  or  from  any  other  circumstance  which  persons  of 
competent  skill  could  not  guard  against,  the  plaintiff  is  not 
entitled  to  recover ;  and  so  if  the  plaintiff's  men  had  put  this 
barge  in  such  a  place,  that  persons  using  ordinary  care  would 
run  against  it,  the  defendant  will  not  be  liable.  Nor  will  he 
be  liable  if  the  accident  could  have  been  avoided,  but  for  the 

i  Vanderplank  v.  Miller,  1  Moo.  &  Malk.  R.  21. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  631 

negligence  of  the  plaintiff's  men,  in  not  being  on  board  his 
barge  at  the  time  when  it  was  lying  in  a  dangerous  place. 
The  only  case  in  which  the  defendant  is  answerable,  is,  if  the 
accident  arose  from  the  negligence  or  want  of  skill  in  his  own 
men."1  In  an  action  in  the  Exchequer,  for  running  down  a 
vessel,  Bayley,  B.,  said  :  "  The  rule  is,  that  the  plaintiff  could 
not  recover  if  his  ship  were  in  any  degree  in  fault,  in  not  en- 
deavoring to  prevent  the  collision.  Here  the  plaintiff  had  a 
right  to  presume,  that  the  defendant's  ship  would  do  that 
which  she  ought  to  do.  I  quite  agree,  that  if  the  mischief  be 
the  result  of  the  combined  negligence  of  the  two,  they  must 
both  remain  in  staiu  quo,  and  neither  party  can  recover  against 
the  other."  2 

§  636.  In  this  country  the  above  doctrine  has  been  recog- 
nized by  the  Courts  in  a  number  of  instances,  as  applicable 
in  navigation  to  vessels,  as  well  as  to  carriages  on  land.3  In 
Simpson  v.  Hand,  in  Pennsylvania,4  it  was  held  to  be  an 
undoubted  rule,  that  for  a  loss  arising  from  mutual  negli- 
gence, neither  party  can  recover  in  a  Court  of  Common 
Law  ;  and  this  rule  governed  the  shippers  of  goods  on  board 
vessels  which  come  into  collision,  to  the  injury  of  the  goods, 
as  well  as  the  owners  of  the  vessels.  Therefore  it  was  held, 
that  an  action  could  not  be  maintained  by  the  owner  of  goods 
on  board  a  vessel  against  the  owners  of  another  vessel,  to 
recover  damages  for  an  injury  done  to  the  goods  by  a  col- 
lision of  the  two  vessels,  if  there  has  been  mutual  negligence 


1  Lack  v.  Seward,  4  C.  &  Payne,  R.  106. 

2  Vennall  v.  Garner,  1  Crompt.  &  Mees.  R.  21. 

3  See  ante,  §  557,  et  seq ;  and  see  note  to  Smith  v.  Smith,  2  Pick. 
(Mass.)  R.  624,  (Ed.  1848.)     In  the  case  of  Palmer  v.  Barker,  2  Fairf. 
(Me.)  R.  338,  the  opinion  states,  that  when  two  persons  are  travelling  in 
opposite  directions,  and  are  about  to  meet  and  pass  each  other,  in  so  doing 
both  are  bound  to  use  ordinary  care  and  caution.     And  see  Hartfield  v. 
Roper,  21  Wend.  (N.  Y.)  R.  615. 

4  Simpson  v.  Hand,  6  Whart.  (Penn.)  R.  311. 


632  LAW  OF    CARRIERS.  [CH.  XII. 

in  the  conduct  of  those  who  had  the  vessel  in  charge.1  In 
Kennard  v.  Burton,  in  Maine,2  the  Court,  after  a  careful 
examination  of  the  adjudged  cases  respecting  collisions,  held 
the  correct  rule  to  be  as  above  laid  down. 

§  637.  The  doctrine  of  the  Common  Law,  that  neither 
party  can  recover  for  damage  which  has  resulted  from 
mutual  negligence,  has  in  this  country  been  applied  to  canal 
boats.  The  "  Canal  Regulations "  in  New  York  have 
adopted,  for  the  regulation  of  canal  navigation,  what  is 
essentially  the  American  law  of  the  road ; 3  that  is,  when 
boats  meet  on  the  canals,  it  is  the  duty  of  the  master  of  each 
to  turn  out  to  the  right  hand,  so  as  to  be  wholly  on  the  right 
side  of  the  centre  of  the  canal.4  If  at  the  time  of  a  collision 
of  two  boats,  either  of  them,  through  negligence  or  design, 
are  near  the  centre  of  the  canal,  neither  having  turned  suffi- 
ciently to  the  right,  whatever  injury  results  is  the  common 
fault  of  both  parties,  and  the  owners  of  each  boat  must  sub- 
mit to  the  injury  done  to  them,  in  consequence  of  the  mutual 

1  By  the  Common  Law,  the  liability  to  contribution,  of  cargo  on  board 
the  wrong-doing  vessel,  could  only  lead  to  circuity  of  action,  inasmuch  as 
the  freighter  might  recover  the  amount  paid  by  him,  from  the  owners  of 
the  vessel.     But  an  action  may  be  maintained  by  the  owner  of  goods  lost 
or  damaged  by  collision,  against  the  owners  of  the  vessel  which  can  be 
proved  to  have  been  in  fault.     Abbott  on  Shipp.  (5th  Am.  ed.)  313.     As 
between  the  owners  and  the  freighter,  in  cases  of  accident,  the  injury 
caused  by  a  collision,  is  a  "  peril  of  the  sea"  within  the  usual  exception 
of  the  charter-party.     Ib. ;  Buller  v.  Fisher,  1  Esp.  R.  67.     And,  in  one 
case,  a  loss  resulting  from  collision  occasioned  by  gross  negligence,  was 
also  held  to  have  occurred  by  "  perils  of  the  sea."     Smith  v.  Scott,  4 
Taunt.  R.  125.     See  ante,  $  166. 

2  Kennard  v.  Burton,  12  Shep.  (Me.)  R.  39. 

3  When  two  persons  are  travelling  with  carriages  on  the  road,  and  are 
about  to  meet  and  pass  each  other,  each  is  bound  to  pass  to  the  right  of  the 
centre  of  the  travelled  road,  and  in  so  doing  to  use  ordinary  care  and  cau- 
tion ;  and  if  one  of  them,  by  omitting  this  care  and  caution,  be  injured  in 
his  person  or  property,  he  is  without  legal  remedy.     See  ante,  §  549,  et 
seq.;  Palmer  v.  Barker,  2  Fairf.  (Me.)  R.  338. 

«  1  New  York  Rev.  Stat.  248,  §  154  ;  Ib.  695,  $  1. 


CH.  XH.]  PASSENGER   CARRIERS  —  BY  WATER.  633 

default.  Every  boat  navigating  the  New  York  canals  is  also 
required  to  carry  conspicuous  lights  on  its  bow ;  and  a  want 
of  lights  on  the  bow  is  negligence.1 

§  638.  But  it  is  to  be  observed,  that,  in  cases  of  mutual 
negligence,  the  plaintiff  will  be  entitled  to  recover  if  the 
want  of  ordinary  care,  on  his  part,  did  not  contribute  to  pro- 
duce the  injury.  In  the  language  of  Coleridge,  J.,  to  the 
jury, —  "  If  the  plaintiff's  servants  substantially  contributed 
to  the  injury,  by  their  improper  or  negligent  conduct,  the 
defendants  would  be  entitled  to  their  verdict ;  but  if  the 
injury  was  occasioned  by  the  improper  or  negligent  con- 
duct of  the  defendant's  servants,  and  the  plaintiff's  servants 
did  not  substantially  contribute  to  produce  it,  then  the  plain- 
tiff would  be  entitled  to  a  verdict."  2  This  was  the  case  of 
a  brig  carrying  her  anchor  in  a  position  contrary  to  the  by- 
laws of  the  river  Thames,  at  the  time  when  she  came  into 
collision  with  a  barge  ;  and  it  was  held,  that  the  improper 


1  Rathbun  v.  Payne,  19  Wend.  (N.  Y.)  R.  399.  But  there  may  be  a 
third  boat  concerned,  and  there  is  a  duty  towards  her  to  be  attended  to. 
Under  the  7th  section  of  the  Act  of  Pennsylvania  of  April  10,  1826,  where 
an  ascending  and  descending  boat  have  to  pass  each  other,  near  to,  or  at  a 
narrow  place  in  a  canal,  constructed  under  the  laws  of  the  State  for  inland 
navigation,  it  is  the  duty,  as  between  themselves,  of  the  ascending  boat  to 
wait  at  such  distance  from  such  narrow  place  as  to  permit  the  descending 
boat  to  pass  with  safety  ;  and  if  any  injury  be  sustained  by  the  descending 
boat,  through  a  non-compliance  with  the  law  on  the  part  of  the  ascending 
boat,  the  latter  is  liable  for  such  injury.  But  where  a  boat  of  a  third 
party,  moored  properly  to  the  bank  of  a  canal  for  a  lawful  purpose,  is  con- 
cerned, and  the  ascending  boat  will  not  comply  with  the  directions  of  the 
act  of  the  State,  it  is  held  to  be  the  duty  of  the  persons  having  the  charge 
of  the  descending  boat,  to  keep  her  at  a  proper  distance,  and  under  their 
control,  so  as  to  insure  safety  ;  and  if,  through  culpable  negligence,  or  a 
want  of  due  caution  in  passing  each  other,  a  collision  takes  place,  through 
and  by  which,  the  descending  boat  is  driven  against,  and  staves  in,  such 
third  boat,  the  owners  or  persons  in  charge  of  the  descending  boat  are 
answerable  in  damages  for  the  injury  sustained  by  such  third  boat.  Sher- 
rer  v.  Kissinger,  1  Barr.  (Penn.)  R.  44. 

a  Sills  v.  Brown,  9  C.  &  Payne,  R.  601. 


634  LAW   OP   CARRIERS.  [CH.  XII. 

carrying  of  the  anchor  would  not,  of  itself,  be  sufficient  to 
make  the  owner  of  the  brig  responsible  in  damages,  if  the 
barge,  by  departing  from  the  known  rule  of  the  river,  brought 
herself  into  the  situation  in  which  the  brig  struck  her,  al- 
though, but  for  the  position  of  the  anchor,  the  collision  would 
not  have  produced  the  injury  complained  of.  Coleridge,  J., 
told  the  jury,  if  they  thought  the  mischief  was  occasioned  by 
any  want  of  skill,  or  by  any  negligence  or  improper  conduct 
whatever,  on  the  part  of  the  men  on  board  the  brig,  without 
the  men  on  -board  the  barge  having  substantially  contributed 
to  produce  it,  then  the  plaintiff  would  be  entitled  to  their 
verdict.  On  the  other  hand,  if  they  thought  that  the  men  on 
board  the  barge  substantially  contributed  to  the  mischief,  to 
its  happening,  to  its  taking  place,  then  the  defendant  would 
be  entitled  to  a  verdict.1  Where  the  claim  of  the  defendant, 
in  an  action  for  an  injury  to  the  plaintiff's  steamboat  was, 
that  the  injury  was  occasioned  by  the  neglect  of  the  officers 
and  crew  of  such  boat  to  keep  up  lights  according  to  the 
statute  ;  and  the  Court  charged  the  jury,  that  if  such  officers 
and  crew  were  guilty  of  negligence,  either  in  respect  to  the 
lights  or  otherwise,  to  such  a  degree  as  essentially  to  con- 
tribute to  the  injury  complained  of,  the  plaintiff  could  not 
recover  ;  it  was  held,  that  the  charge  was  unexceptionable  ; 
and  the  Court,  in  giving  their  opinion,  expressly  sanction  the 
rule  as  above  laid  down  by  Coleridge,  J.2  In  short,  the 
result  of  the  cases  clearly  is,  that  although  there  has  been 
negligence  on  both  sides,  the  plaintiff  may  be  entitled  to 
recover,  inasmuch  as  the  fault  of  the  plaintiff,  in  order  to 


1  One  of  the  jury  asked,  whether  they  were  not  told,  that  the  way  in 
which  the  anchor  was  placed  had  nothing  to  do  with  the  question.  Cole* 
ridge,  J.  —  "  No.  You  must  have  misunderstood  my  observations,  if  that 
was  the  impression  you  received.  The  position  of  the  anchor  will  not  be 
sufficient  to  make  the  defendant  liable,  if  the  plaintiff,  by  his  servants, 
substantially  contributed  to  the  occurrence  of  the  injury,  not  to  its  amount, 
but  to  the  occurrence  of  it."  The  verdict  was  for  the  defendant. 

'  New  Haven  Steamboat  Company  r.  Vanderbilt,  16  Conn.  R.  420. 


CH.  XII.]  PASSENGER   CARRIERS — BY  WATER.  635 

prevent  his  recovering,  must  be  one  directly  tending'  to  pro- 
duce the  injury.1 

§  639.  In  an  action  against  the  owner  of  a  brig,  for  an 
injury  done  to  a  sloop  belonging  to  the  plaintiff,  the  amount 
of  damage  proved  was  upwards  of  £500,  and  the  jury  gave 
a  verdict  for  £250  only  ;  and  on  being  asked  how  they  made 
up  their  verdict,  they  replied,  that,  in  their  opinion,  there 
were  faults  on  both  sides.  It  was  held,  that,  notwithstanding 
this,  the  plaintiff  was  entitled  to  a  verdict,  as  there  might  be 
faults  in  the  plaintiff  to  a  certain  extent,  and  yet  not  to  such 
an  extent  as  to  prevent  his  recovering.2  The  verdict  in  this 
case,  as  well  as  the  opinion  given  by  C.  J.  Tindal,  is  sustain- 
able in  point  of  law,  according  to  the  case  of  Bridge  v.  The 
Grand  Junction  Railway  Company,3  which  was  an  action  on 
the  case  for  the  negligent  management  of  a  train  of  railway 
cars  ;  and  Mr.  Baron  Parke  said,  "  There  may  have  been 
negligence  in  both  parties,  and  yet  the  plaintiff  may  be 
entitled  to  recover." 

§  640.  Indeed,  in  cases  of  injury  done  by  one  vessel  to 
another  by  collision,  or  other  means,  the  authorities  warrant 
the  position,  that  the  jury  may  take  an  equitable  vieiv  of  the 
facts  and  circumstances ;  as  was  expressly  held  in  Smith  v. 
Dobson.4  That  case  was  an  action  to  recover  damages  for 
the  upsetting  of  a  barge  laden  with  coal,  and  it  appeared  that 
a  small  steam-vessel  belonging  to  the  defendants,  and  called 
the  "  Water  Lily,"  was  proceeding  down  the  river,  preceded 
by  a  larger  one,  called  the  "  Ramona,"  and  that,  in  conse- 

1  Kennard  v.  Burton,  ub.  sup. ;  Rathbun  v.  Payne,  19  Wend.  (N.  Y.) 
R.  399  ;  Marriott  v.  Stanley,  1  Scott,  New  R.  392  ;  and  the  note  to  the 
case  of  Raisin  v.  Mitchell,  9  C.  &  Payne,  R.  613  ;  Collinson  v.  Larkins, 
3  Taunt.  R.  1  ;  Luxford  v.  Large,  5  C.  &  Payne,  R.  421. 

2  Raisin  u.  Mitchell,  9  C.  &  Payne,  R.  613. 

3  Bridge  v.  Grand  Junction  Railway  Company,  3  M.  &  Welsh.  R.  244. 

4  Smith  v.  Dobson,  3  Scott,  New  R.  336;  S.  C.  3  Man.  &  Grang. 
R.  59. 


636  LAW   OF   CARRIERS.  [CH.  XII. 

quence  of  the  swell,  occasioned  by  one  or  both  these  vessels, 
the  plaintiff's  barge  was  swamped  and  the  coals  lost.  The 
amount  of  damage  was  about  £80  ;  but  the  jury  returned  a 
verdict  for  only  £20,  assigning  as  a  reason  for  giving  only 
that  sum,  that  they  did  not  think  the  "  Water  Lily  "  to  have 
been  the  sole  cause  of  the  accident.  Erskine,  J.,  said,  — 
"  The  jury  might  well  conclude,  that  the  '  "Water  Lily'  had 
at  least  contributed  to  the  accident,  and,  if  so,  though  the 
swell  occasioned  by  the  defendant's  vessel  would  not,  in  all 
probability,  have  caused  the  barge  to  sink,  if  the  water  had 
not  been  previously  agitated  by  the  passing  of  the  '  Ramona,' 
still  the  owners  of  the  '  Water  Lily '  were  in  strictness  liable 
for  the  whole  damage.  The  jury,  however,  taking  an  equi- 
table view  of  the  facts,  evidently  thought  it  not  fair  to  make 
the  defendants  pay  for  an  injury  which  was  only  in  part 
attributable  to  them."  The  Court  refused  to  interfere  with 
the  verdict.1 
ft 

§  640  a.  The  weakness  of  the  vessel  injured  by  collision  is 
no  protection  to  the  owners  of  the  other  vessel  if  they  have 
been  guilty  of  negligence  ;  and  the  circumstances  may  be 
such  as  to  require  even  more  than  ordinary  care  on  their 
part.  In  an  action  on  the  case  founded  on  the  allegation, 
that  the  plaintiffs  being  possessed  of  a  boat  tied  to  a  wharf, 
and  the  defendant  being  possessed  of  another  boat,  did,  by 
himself  and  servants  manage  his  boat  so  carelessly,  that  it 
ran  against  the  plaintiffs'  boat,  whereby  she  was  sunk,  &c. 
The  collision  occurred  in  removing  the  defendant's  boat  from 
a  position  above  to  one  below  that  of  the  plaintiffs'  boat,  in 
doing  which  the  defendant's  boat  necessarily  passed  outside 
of  the  plaintiffs'.  There  being  evidence  conducing  to  prove 
that  the  plaintiffs'  boat  was  not  so  strong  as  boats  ordinarily 
were,  in  which  very  heavy  articles  were  transported  in  the 


1  And  per  Coltman,  J.,  —  "  The  foreman  is  to  give  in  the  verdict,  but 
he  has  no  power  to  qualify  that  verdict  by  any  observation  he  may  think 
fit  to  add." 


CH.  XII.]  PASSENGER   CARRIERS  —  BY   WATER.  637 

river,  the  principal  question  was  as  to  the  effect  which  this 
fact  should  be  entitled  to  in  determining  the  liability  of  the 
defendant,  or  the  degree  of  diligence  to  which  he  was  bound 
in  removing  his  boat.  It  was  held,  that  the  weakness  of  the 
boat  injured  by  collision  afforded  no  protection  against  the 
defendant's  want  of  proper  care  ;  but  that  as  the  weakness 
rendered  the  boat  more  liable  to  injury  from  collision,  it  de- 
manded greater  vigilance  and  precaution  on  the  part  of  those 
who  knew  the  fact.1 

§  641.  The  above  cases  illustrate  the  Common  Law  in 
respect  to  damage  resulting  from  a  collision  of  one  vessel 
with  another,  when  it  has  resulted  from  the  negligence  or 
mismanagement  of  the  master  or  crew  of  both  vessels.  In 
the  Admiralty,  before  which  Court  misfortunes  of  this  kind 
have  been  frequently  the  subject  of  controversy,  the  loss,  as 
has  before  been  stated,  must  be  apportioned  between  the 
parties,  as  having  been  occasioned  by  the  fault  of  both  of 
them.2  There  has  been  much  difference  in  the  codes  and 
authorities  in  maritime  law,  whether  the  cargo,  as  well  as  the 
vessel,  was  to  contribute  to  the  loss.3  But  in  Le  Neve  v. 
Edinburgh  and  London  Shipping  Company,4  the  cargo  of 
the  ship  that  was  sunk  and  lost  by  the  collision,  received  the 
benefit  of  the  contribution  ;  the  House  determining,  after  the 
address  to  them  by  Lord  Gifford,  that  both  vessels  were  in 
fault.5  Lord  Denman,  adverting  to  the  occasional  hardship 


1  Inman  v.  Funk,  (Co.  of  Appeals  of  Kentucky,)  7  Mon.  (Ken.)  R.  538. 

2  Abbott  on  Shipp.  (5th  Am.  ed.)  303.     We  have  before  seen,  that  by 
an  act  of  Congress  the  jurisdiction  of  the  District  Courts  of  the  United 
States  has  been  extended  to  certain  cases  upon  the  lakes,  (see  ante,  §  610  a.) 
For  a  precedent  of  a  libel  in  a  case  of  collision  under  this  act,  see  Appx. 
p.  xci. 

3  Ibid.  300-314  ;  3  Kent,  Comm.  231  :  Story  on  Bailm.  §  607-611. 

4  Le  Neve  v.  Edinburgh  and  London  Shipping  Company,  a  case  brought 
to  the  English  House  of  Lords  from  the  Courts  of  Scotland,  and  cited  in 
1  Bell,  Comm.  581  ;  and  Abbott  on  Shipp.  ub.  sup. 

5  The  decree  stated,  that  "  The  Lords  find,  that  the  appellants  are  liable 

54 


638  .  LAW   OF    CARRIERS.  [CU.  XII. 

of  the  principle,  says,  "  It  grows  out  of  an  arbitrary  pro- 
vision in  the  law  of  nations,  from  views  of  general  expe- 
diency, not  as  dictated  by  natural  justice,  nor  possibly  not 
quite  consistent  with  it."  1  Kent,  in  his  Commentaries,  speaks 
after  Clairac,2  of  the  rule  as  rusticum  judicium.B  But  colli- 
sion, in  the  open  sea,  is  comparatively  rare,  and  generally 
accidental,  while  in  roads,  and  in  confined  navigations,  it  is 
a  disaster  of  frequent,  and  seldom  of  blameless,  occurrence ; 
and  "  there  is  no  better  means,"  says  Valin,  (adopting  the 
reasoning  of  the  Jugemens  d'Oleron,)  "  of  making  the  mas- 
ters of  small  vessels,  which  are  liable  to  be  injured  by  the 
slightest  shock,  attentive  to  avoid  collision,  than  to  keep  the 
fear  of  paying  for  half  the  damage  constantly  before  their 
eyes."  4 

§  642.  Lord  Stowell,  in  the  case  of  the  Woodrop  Sims,5 
states  four  possibilities  under  which  collision  may  occur. 
"  In  the  First  place,  it  may  happen  without  blame  being 
imputed  to  either  party,  as  where  the  loss  is  occasioned  by  a 
storm  or  any  other  vis  major.  In  that  case  the  misfortune 
must  be  borne  by  the  party  on  whom  it  happens  to  light ;  the 
other  not  being  responsible  to  him  in  any  degree.6  Secondly, 


to  the  respondents,  in  the  sum  of  j£l535  16s.,  one  half  the  value  of  the 
Wells  and  cargo,  such  half  not  exceeding  the  value  of  the  Sprightly  and 
her  freight."  The  Court  of  Admiralty,  says  Story,  (Story  on  Bailm. 
§  607,  n.  3,)  continues  to  act  upon  this  rule,  "  as  the  sound  doctrine  of  the 
maritime  law  ;  "  and  he  refers  to  De  Vaux  v.  Salvador,  4  Adol.  &  Ell. 
R.  420  ;  and  he  says  the  rule  of  the  Admiralty  was  fully  recognized  by 
Judge  Hopkinson,  in  Reeves  v.  The  Ship  Constitution,  Gilp.  R.  579.  He 
also  refers  to  2  English  Monthly  Law  Magazine,  607  ;  4  Ib.  88 ;  5  Ib.  45  j 
8  Ib.  446  ;  5  Ib.  303. 

1  De  Vaux  v.  Salvador,  4  Adol.  &  Ell.  420. 

2  Cleirac,  Us  et  Coutumes  de  la  Mer,  68. 

3  3  Kent,  Cotnm.  231. 

4  Abbott  on  Shipp.  (5th  Am.  ed.)  306. 

5  The  Woodrop  Sims,  2  Dods.  R.  83. 

G  See  Story  on  Bailm.  §  608  ;  Reeves  v.  The  Ship  Constitution,  Gilp. 
R.  579  ;  Steamboat  Co.  v.  Whilldin,  4  Harring.  (Del.)  R.  228  ;  Cum- 


CH.    XH.]  PASSENGER   CARRIERS  —  BY   WATER.  639 

a  misfortune  of  this  kind  may  arise,  where  both  parties  are  to 
blame,  or  where  there  has  been  want  of  due  diligence  or  of 
skill  on  bofh  sides  :  in  such  case,  the  rule  of  law  is,  that  the 
loss  must  be  apportioned  between  them,  as  having  been  occa- 
sioned by  the  fault  of  both  of  them.  Thirdly,  it  may  happen 
by  the  misconduct  of  the  suffering  party  only  ;  and  then  the 
rule  is,  that  the  sufferer  must  bear  his  own  burthen.  Fourthly, 
it  may  have  been  the  fault  of  the  ship  which  ran  the  other 
down,  and  in  this  case  the  innocent  party  would  be  entitled 
to  an  entire  compensation  from  the  other."  If  the  master  or 
owner  of  one  of  the  colliding  vessels  is  unwilling  to  bear  his 
own  loss,  and  desires  to  fix  it  upon  the  other,  he  may  seek 
his  remedy  in  the  Court  of  Admiralty,  (commencing  with 
the  arrest  of  the  vessel,)  or  in  a  Court  of  Common  Law  ; 
and  if  he  can  prove  that  the  master  of  the  defendant's  vessel 
was  alone  in  fault,  or  that  no  want  of  ordinary  care  or  skill, 
on  his  own  part,  contributed  to  the  misfortune,  he  will  be 
entitled,  in  either  tribunal,  to  recover  a  full  compensation.1 

§  643.  It  is  very  obvious,  that  in  all  cases  of  collision,  the 


mings  v.  Spruance,  Ibid.  315.  In  cases  of  collision  of  vessels  occasioned 
by  stress  of  weather,  and  neither  party  is  in  fault,  the  owner  of  the  injured 
vessel  must  bear  the  loss.  1  Dev.  (Texas)  R.  30. 

1  Abbott,  &c.  supra.  "  In  cases  of  collision,"  says  Story,  "  where  a 
loss  is  caused  by  the  fault  of  one  of  the  ships  only,  the  general  maritime 
law  exacts  a  full  compensation,  to  be  paid  out  of  all  the  property  of  the 
owners  of  the  guilty  ship,  upon  the  common  principle  applied  to  persons 
who  undertake  the  conveyance  of  goods,  that  they  are  answerable  for  the 
conduct  of  the  agents  whom  they  employ  ;  and  the  other  parties  who  suffer 
the  damage,  place  no  trust  in  these  agents,  and  can  exercise  no  sort  of 
control  over  their  acts.  To  this  rule  England  for  a  long  time  conformed. 
But  Holland,  having  for  the  protection  of  its  own  navigation  limited  the 
remedy  against  the  owner  to  the  value  of  the  ship,  freight,  apparel,  and 
furniture,  England  has  recently  followed  the  example,  and  established  by 
statute  a  like  limitation.  (See  ante,  §  90.)  In  America  no  positive  enact- 
ment has  been  made  ;  and,  therefore,  the  responsibility  of  the  guilty  ship 
and  its  owners  stands  upon  the  general  maritime  law."  Story  on  Bailm. 
$  608  d.  But  see  ante,  §  90. 


640  LAW   OF   CARRIERS.  [CH.  XII. 

essential  inquiry  is,  whether  measures  of  precaution  are  taken 
by  the  vessel  which  has  ran  down  the  other  ;  and  it  is  obvi- 
ous, also,  that  the  question  is  one  partly  of  nautical  care  and 
skill,  and  partly  a  question  of  nautical  usage.1  Where  the 
evidence  on  both  sides  is  conflicting  and  nicely  balanced,  a 
Court  of  Admiralty  will  be  guided  by  the  probabilities  of  the 
respective  cases,  which  are  set  up.  A  priori,  the  presump- 
tion is,  that  the  master  of  a  vessel  would  do  what  was  right, 
and  follow  the  regular  and  correct  course  of  navigation.  In 
the  case  of  the  Mary  Stewart,2  which  was  a  case  of  collision 
the  testimony  of  the  witnesses  on  the  one  side  and  the  other 
was  so  conflicting,  that  the  Court  requested  the  opinion  of 
Trinity  Masters  upon  the  probabilities  of  the  respective  state- 
ments in  issue.  If  a  vessel  be  at  anchor,  with  no  sails  set, 
and  in  a  proper  place  for  anchoring,  and  another  vessel, 
under  sail,  occasions  damage  to  her,  the  latter  is  liable.  On 
the  other  hand,  if  the  place  of  anchorage  is  an  improper 
place,  the  owners  of  the  vessel  which  is  thus  injured  must 
abide  the  consequences  of  the  misconduct  of  the  master.  A 
vessel  ought  not  to  be  moored  and  lie  in  the  channel  or 
entrance  to  a  port  except  in  cases  of  necessity  ;  and  if  so 
anchored  from  necessity,  she  ought  not  to  remain  there  any 
longer  than  the  necessity  continues,  and  by  so  doing,  and  a 
collision  occurs,  with  a  vessel  entering  the  harbor,  she  will 
be  considered  in  fault.3  In  a  suit  in  the  Admiralty,  it  was 
given  in  evidence  for  the  libellants,  that  the  ship  Harriet, 
after  sailing  from  New  Orleans,  passed  over  the  bar  through 
one  of  the  passes  or  outlets  of  the  Mississippi  River,  and  came 
to  anchor  near  the  bar.  Another  ship,  the  Louisville,  lying 
below  a  distance  of  several  miles,  weighed  anchor  with  a 


1  Story  on  Bailm.  $  611 ;  The  Friends,  1  W.  Rob.  R.  478  ;  General 
Steam  Navigation  Co.  v.  Tonkin,  4  Moore,  R.  314  ;  Steamboat  Company 
v.  Whilldin,  4  Harring.  (Del.)  R.  228 ;  Lowry  v.  Steamboat  Portland, 
post,  §  655,  662. 

2  The  Mary  Stewart,  2  W.  Rob.  R.  244. 

3  The  Sciota,  Daveis,  (Dist.  Co.)  R.  359. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  641 

fresh  and  favorable  wind  for  coming  in,  through  the  same 
pass.  As  the  Louisville  approached  the  bar,  the  wind  died 
away,  and  the  current  being  stronger  than  usual,  owing  to  a 
strong  wind  from  the  south  the  night  before,  she  drifted  and 
so  ran  afoul  of  the  Harriet.  These  passes,  it  appeared,  are 
intricate  and  difficult  to  navigate,  and  subject  to  counter  and 
under  currents ;  and  if  the  wind  dies  away  when  a  ship  is 
coming  in,  she  is  certain  to  drift  and  become  unmanageable. 
The  question,  under  these  facts,  was,  whether  a  prudent  mas- 
ter would  anchor  his  vessel  so  immediately  in  the  thoroughfare 
as  did  the  Harriet ;  and  that,  too,  after  having  been  run  afoul 
of  by  another  vessel  a  year  before,  at  or  near  the  same  place. 
The  District  Court  decreed  in  favor  of  the  libellants,  and 
against  the  Louisville,  her  tackle,  &c.  The  decree  was, 
however,  reversed  in  the  Circuit  Court  with  costs,  in  which 
the  opinion  of  Mr.  J.  McKinley  was,  that  the  third  rule 
above  mentioned  of  Lord  Stowell,  viz.,  that  the  sufferer 
must  bear  his  own  burden  under  his  third  possibility  under 
which  a  collision  may  occur,  applied  with  great  force  to  the 
case  under  consideration.  It  was  admitted  by  the  learned 
Judge,  that  the  opinions  of  some  nautical  men,  found  in  the 
evidence,  showed  that  it  was  possible  for  the  Louisville  to 
have  avoided  the  collision,  had  every  thing  been  done  that  if 
was  possible  to  do.  But,  said  he,  "  the  law  imposes  no  such 
diligence  on  the  party  in  this  case  ;  so  far  as  the  Harriet  was 
concerned,  the  Louisville  was  entitled  to  the  full  use  of  the 
thoroughfare  of  the  pass  ;  the  master  of  the  Harriet  having 
obstructed  it,  with  a  full  knowledge  of  the  danger  of  doing 
so,  has  been  guilty  of  such  misconduct  as  to  deprive  the 
appellees  of  the  right  of  action  against  the  appellants."  l  On 
appeal  by  the  libellants  to  the  Supreme  Court,  that  Court 
being  equally  divided  in  opinion,  the  judgment  of  the  Circuit 
Court  was  affirmed.  If  in  this  case  the  anchor  had  been  too 
light  to  hold  the  ship,  and  she  consequently  had  dragged  it, 


1  Strout  v.  Foster,  1  How.  (U.  S.)  R.  89. 

54* 


642  LAW    OF   CARRIERS.  [CH.  XII. 

and  she  thereby  had  run  against  the  other  vessel,  the  respon- 
sibility of  the  loss  would  have  fallen  upon  the  owners  of  the 
anchored  ship,  inasmuch  as  she  would  have  been  negligently 
and  improperly  anchored.1 

§  644.  The  anchorage  of  a  vessel  should  always  be  pro- 
perly taken  up,  and  the  anchor  sufficiently  large,  and  if  not 
so,  and  a  collision  is  the  consequence,  the  blame  must  be 
imputed  to  the  master  ;  whereas,  if  the  collision  arose  merely 
from  the  violence  of  a  squall,  it  will  then  be  the  result  of 
inevitable  accident.  A  commander  of  a  ship  was  condemned 
in  the  Admiralty  in  a  cause  of  damage,  the  collision  having 
been  occasioned  by  his  anchoring  too  near  the  damaged 
vessel ;  and  having  anchored  with  only  one  anchor,  the 
weather  being  squally  and  tempestuous.2  The  owners  of  a 
vessel,  disabled  by  the  negligence  of  its  crew,  are  clearly 
answerable  for  damage  done  by  its  accidentally  drifting,  when 
so  disabled,  against  another  vessel.3 

§  644  a.  There  is  no  doubt  that  a  vessel  in  motion  is 
bound  to  steer  clear  of  a  vessel  at  her  moorings,  and  that 
nothing  can  excuse  her  from  making  compensation  but  una- 
voidable accident,  the  vis  major  which  no  care  can  guard 
against ; 4  for  it  is  the  duty  of  every  vessel  seeing  another  at 
anchor,  whether  in  a  proper  or  an  improper  place,  and 
whether  properly  or  improperly  anchored,  to  avoid,  if  prac- 
ticable and  consistent  with  her  own  safety,  any  collision.5 
It  may,  perhaps,  be  stated  as  an  established  general  rule, 
that  a  vessel  entering  a  harbor  in  the  night  time  is  put  on  her 
utmost  vigilance  ;  and  this  is  more  especially  so,  if  the  port 
is  one  much  resorted  to  in  bad  weather,  as  a  harbor  of  refuge, 


1  The  Massachusetts,  1  W.  Rob.  R.  71. 

2  The  Volcano,  2  W.  Rob.  R.  337. 

3  Seecombe  v.  Wood,  2  M.  &  Rob.  R.  290. 

4  The  Girolamo,  3  Hagg.  R.  173. 

5  The  Batavier,  10  Jur.  19. 


CH.  XII.]  PASSENGER   CARRIERS — BY   WATER.  643 

and  when  it  is  reasonable  to  expect  that  the  harbor  will  be 
crowded  with  water-craft.  The  master  and  crew  should  be 
on  deck,  and  in  such  parts  of  the  vessel  as  to  be  able  to  con- 
trol her  motions,  and  to  see  any  vessel  that  lies  in  her  track, 
and  which  they  may  be  approaching.  And,  always  when  a 
collision  takes  place  between  a  vessel  under  sail  and  one  at 
anchor,  the  primd  facie  presumption,  if  there  be  any  fault,  is 
that  it  is  on  the  part  of  the  vessel  which  is  under  sail.1 

§  645.  If  a  vessel  chooses  to  avail  herself  of  a  particular 
mode  of  going  down  a  river,  at  a  particular  time,  which 
renders  it  difficult  to  escape  a  collision,  she  must  bear  the 
consequences  of  a  contingency  to  which  she  has  exposed 
herself.  Thus,  a  plea  in  the  Admiralty,  in  a  cause  of  darn- 
age,  that  the  ship  causing  the  collision  was  being  warped 
down  the  river  at  the  time,  and  in  consequence  could  not  get 
out  of  the  way  was  overruled.2 

§  646.  The  laws  of  Oleron  and  of  Wisbuy  made  it  the  duty 
of  a  master  of  a  vessel  always,  when  in  port,  to  keep  a  buoy 
to  his  anchor,  and  rendered  him  liable  for  all  damage  caused 
by  a  neglect  to  do  it.3  It  has  been  held  at  Common  Law, 
that  if  a  vessel  is  sunk  by  inevitable  accident,  in  a  public 
navigable  river,  and  without,  therefore,  any  fault  on  the  part 
of  the  owner,  a  buoy  must  be  placed  over  it  for  the  common 
safety  ;  and  this  was  held  by  Lord  Ellenborough  to.be  the 
only  proper  and  specific  notice,  and  the  one  which  all  persons 
understand  and  are  bound  to  attend  to.  Although  the  party, 
in  such  case  of  inevitable  accident,  is  not  liable  to  indictment 
for  not  removing  the  wreck,  yet  he  is  liable  for  damages  in  a 


1  The  rule  is  so  stated  by  Boulay  Paty,  Droit  Maritime,  tit.  12,  s.  6, 
vol.  4,  p.  492,  and  recognized  in  the  Sioto,  Daveis,  (Dist.  Co.)  R.  359  ; 
The  Neptune,  1  Dod.  R.  467. 

2  The  Hope,  2  W.  Rob.  R.  8. 

3  Laws  of  Oleron,  Art.  14  ;  Laws  of  Wisbuy,  Art.  28  ;  and  see  1  Pet. 
(Adm.)  R.  Appx.  28,  78,  85. 


644  LAW   OF  CARRIERS.  [CH.  XII. 

civil  action  occasioned  by  a  neglect  of  such  notice  ;  a  verbal 
communication  by  a  person  stationed  near  the  spot  of  the 
sunken  vessel,  is  an  admonition  liable  to  be  misunderstood, 
and  is  not  a  sufficient  warning.1  But  it  has  been  considered 
remarkable  that  Lord  Ellenborough  should  have  assumed 
such  to  be  the  law.2  And  in  Brown  v.  Mallett  in  the  Eng- 
lish Court  of  Common  Pleas,  in  1848,3  it  was  expressly  held, 
that  where  a  vessel  is  sunk  by  inevitable  accident,  or  without 
any  fault  on  the  part  of  the  owner  or  his  servants,  in  a  navi- 
gable river,  and  remains  there  under  water,  no  duty  is  cast 
upon  the  owner  to  use  any  precaution,  in  the  absence  of  any 
positive  enactment  to  that  effect,  by  placing  a  buoy  or  other- 
wise ;  and  that  the  owner,  therefore,  is  not  liable  either  to  an 
indictment,  or  to  an  action  at  the  suit  of  a  party  sustaining 
special  damage  in  respect  of  such  omission.  Such  an  ob- 
struction is  indeed  incident  to  commerce,  and  when  not  the 
result  of  negligence,  is  not  unlawful,  and  imposes  no  duty ; 
for  the  vessel,  without  his  fault,  has  been  put  beyond  the 
control  of  the  owner,  and  he  has  been  an  innocent  sufferer.4 
Ships  of  the  larger  class  and  tonnage,  when  deeply  laden, 
have  often  grounded  in  ascending  and  descending  the  river 
Delaware  ;  but  it  has  never  been  considered  an  illegal  ob- 
struction of  the  channel,  or  a  public  nuisance,  if  ordinary 
care  has  been  exercised.5 

§  647.  In  many  ports  there  are  Trinity  House  regulations, 
requiring  vessels  at  anchor  in  a  navigable  river,  or  port  of 
much  commerce,  to  have  a  light  hung  out  conspicuously  in 
dark  nights  ;  6  and  the  boats  navigating  the  New  York  canals, 

1  Harmond  v.  Pearson,  1  Campb.  R.  515. 

2  Per  Maule,  J.  in  Brown  v.  Mallett,  5  Man.  Grang.  &  Scott,  R.  599. 

3  Ibid. 

4  Rex  v.  Walls,  2  Esp.  R.  675. 

5  Cummins  v.  Spruance,  4  Harring.  (Del.)  R.  315. 

6  3  Kent,  Comm.  230,  note  (c).     Though  it  has  never  been  laid  down 
as  a  general  principle,  by  the  English  Court  of  Admiralty,  that  merchant 
vessels  ought  constantly  to  carry  lights.    The  Rose,  2  W.  Rob.  4  ;  Colum- 
bine, Ib.  33. 


CH.  XII.]          PASSENGER  CARRIERS  — •  BY  WATER. 

we  have  seen,  are  subject  to  a  like  regulations,  in  order  to 
avoid  injury  in  their  passing  each  other.1  By  the  act  of  Con- 
gress also,  providing  for  the  better  security  of  the  lives  of 
passengers  on  board  of  vessels  propelled  by  steam,  it  is  made 
the  duty  of  the  master  and  owner  of  every  steamboat  run- 
ning between  sunset  and  sunrise,  to  carry  one  or  more  signal 
lights  ;  2  and  by  the  English  Statute  9  &  10  Viet.  c.  100, 
s.  9,  every  steamer  in  any  river,  or  narrow  channel  in  Great 
Britain  or  Ireland,  or  in  the  sea  wilhin  twenty  miles  of  the 
coast,  is  required  to  exhibit  signal  lights  between  sunset  and 
sunrise.3 

§  648.  The  very  fact,  that  there  have  been  as  many  in- 
stances of  imposing  by  statute  upon  masters  of  vessels  the  ob- 
ligation of  carrying,  in  dark  nights,  lights  conspicuously  hung 
out,  and  prescribing  a  penalty  for  disobedience,  argues  cul- 
pable negligence  in  the  omission  of  it,  if  there  were  no  posi- 

1  Ante,  §  637. 

2  Act  of  Congress  of  1838,  chap.  191,  s.  10.     See  the  Act  in  the  Appx. 
p.  Ixxxiv. 

3  The  section  referred  to  reads  as  follows  :  The  master  or  other  person 
having  charge  of  any  steam-vessel  in  any  river  or  narrow  channel  in  Great 
Britain  or  Ireland,  or  the  adjacent  islands,  or  in  the  sea  within  twenty  miles 
of  the  coast,  shall,  whether  under  weigh  or  at  anchor,  between  sunset  and 
sunrise  exhibit  such  lights  in  such  manner,  and  under  such  circumstances 
as  by  the  regulations  therein  authorized  to  be  made  by  the  Lords  Commis- 
sioners of  the  Admiralty,  shall  be  required  under  a  penalty  of  not  exceed- 
ing 201.  for  each  night's  default.     And  the  owner  of  any  steam-vessel  in 
which  such  light  shall  not  be  so  exhibited,  shall  not  be  entitled  to  recover 
any  recompense  or  damage  whatever  which  may  be  sustained  by  such 
vessel  in  consequence  of  any  other  vessel  running  foul  thereof  during  the 
night.     By  section  13,  if  any  damage  to  any  person  or  property  shall  be 
sustained  in  consequence  of  the  non-observance  as  respects  any  steam- 
vessel,  of  the  rules  in  this  Act  contained,  relative  to  steam-vessels  passing 
each  other  and  exhibiting  lights  at  night,  the  same  shall  in  all  Courts  of 
justice  be  deemed,  in  the  absence  of  proof  to  the  contrary,  to  have  been 
occasioned  by  the  wilful  default  of  the  master  or  other  person  having  the 
charge  of  such  steam-vessel,  and  such  master  or  other  person  shall  be  sub- 
ject in  all  proceedings,  whether  civil  or  criminal,  to  the  legal  consequences 
of  such  wilful  default. 


646  LAW   OP   CARRIERS.  [CH.  XII. 

live  regulation  upon  the  subject.  In  reference  to  the  Act  of 
Congress  mentioned  in  the  preceding  section,  Wayne,  J.  has 
said,  that  besides  the  penalty  it  prescribes,  "  if  neglect  or 
disobedience  of  it  shall  be  proved  to  exist  when  injury  shall 
occur  to  persons  or  property,  it  will  be  thrown  upon  the 
master  and  owner  of  a  steamboat,  by  whom  the  law  has  been 
disregarded,  the  burden  of  proof,  to  show  that  the  injury  was 
not  the  consequence  of  it."  1  It  was  said  by  the  Court  in 
Carsley  v.  White,2  that  there  was  no  general  and  absolute 
usage  on  this  subject,  and  that  the  omission  of  a  light  might 
or  might  not  be  a  fatal  negligence,  according  to  the  circum- 
stances. That  was  an  action  on  the  case,  by  the  owners  of 
a  fishing  smack  against  the  owners  of  a  vessel,  to  recover 
damages  alleged  to  have  been  occasioned  by  the  negligence 
and  unskilfulness  of  those  who  had  charge  of  the  defend- 
ant's vessel,  in  running  against  the  plaintiff's  vessel  whilst 
lying  at  anchor  in  Provincetown  harbor.  There  was  no 
light  burning  on  the  deck  of  the  plaintiff's  vessel,  but  it 
was  (although  cloudy  and  misty)  light  enough  for  a  seaman 
to  discern  a  vessel  at  anchor  at  a  considerable  distance.  It 
was  contended,  for  the  defendants,  that  it  was  necessary  for 
the  plaintiffs  to  show  that  they  had  a  light  on  their  deck,  and 
requested  the  Judge  so  to  instruct  the  jury.  But  he  instructed 
them,  that  whether  the  plaintiffs  ought  to  have  a  light  on 
deck,  depended  on  the  circumstances  of  the  case,  especially  the 
position  of  the  vessel  at  anchor,  and  the  state  of  the  light 
from  the  heavens  ;  that  if  the  vessel  was  in  the  usual  place 
of  anchorage,  and  there  was  light  enough  to  enable  the  run- 
ning vessel,  with  a  good  lookout,  to  see  and  avoid  the  vessel 
at  anchor,  it  was  not  necessary  for  the  plaintiffs  to  keep  a 
light  on  deck  ;  but  if  she  was  in  an  unusual  or  exposed  place, 
and  if  it  was  so  dark  that  a  vessel  at  anchor  could  not  be 
seen  and  avoided  without  a  light  on  deck,  it  was  carelessness 
not  to  have  one  ;  that  what  would  be  suitable  and  necessary 

1  Waring  v.  Clarke,  5  How.  (U.  S.)  R.  441. 

2  Carsley  v.  White,  21  Pick.  (Mass.)  R.  254. 


OH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  647 

precaution  in  one  situation  and  state  of  circumstances,  would 
be  insufficient  in  another.  To  this  instruction  the  defendants 
excepted  ;  and  if  the  jury  should  have  been  instructed,  that 
it  was  necessary  for  the  plaintiffs  to  have  had  a  light  on  deck, 
the  verdict,  which  was  for  the  plaintiffs,  was  to  be  set  aside, 
otherwise  judgment  was  to  be  rendered  on  the  verdict.  Mor- 
ton, J.,  who  delivered  the  opinion  of  the  Court,  had  no  doubt 
of  the  correctness  of  the  instructions  to  the  jury  ;  and  held, 
that  it  was  incumbent  on  the  plaintiffs  to  show  that  the  injury 
of  which  they  complained,  was  caused  by  the  misconduct  of 
the  defendants,  and  did  not  arise  from  their  own  negligence. 
"  Whether,"  said  the  learned  Judge,  "  common  care  and 
prudence  required  of  the  plaintiffs  to  have  a  light,  and  the 
omission  to  have  it  amounted  to  negligence,  must  depend  on 
the  darkness  of  the  night,  the  number  and  situation  of  the 
vessels  in  the  harbor,  and  all  the  other  circumstances  con- 
nected with  the  transaction."  This,  said  he,  was  a  question 
of  fact,  within  the  province  of  the  jury  ;  and  as  it  was  sub- 
mitted to  them,  with  proper  comments  and  instructions,  and 
they  had  decided  it,  there  was  no  reason  to  complain  of  their 
decision. 

§  649.  It  was  said  in  the  case  of  the  collision  between  the 
Sciolo  and  the  Falcon,  in  the  harbor  of  Portland,  (the  Falcon 
lying  at  anchor  there,)  one  fault  imputed  to  the  Falcon,  was 
that  of  not  showing  a  light.  It  appeared  to  the  learned  Judge, 
before  whom  the  cause  was  tried,  that  if  she  had  showed  a 
light,  to  be  nearly  certain  that  she  would  have  been  seen  from 
the  Scioto,  in  approaching  her,  in  season  to  have  avoided  the 
collision.  If  she  had  had  a  light,  said  he,  suspended  in  a 
conspicuous  place,  and  a  collision  had  taken  place,  it  would 
to  say  the  least,  have  been  extremely  difficult  for  the  colliding 
vessel  to  have  excused  herself ;  for,  admitting  the  vessel  was 
anchored  in  an  improper  place,  her  fault  would  not  excuse 
any  want  of  care  and  caution  in  another  vessel.4  That  the 

1  By  the  learned  Judge  Ware,  Daveis,  (Dist.  Co.)  R.  368. 


648  LAW   OF   CARRIERS.  [CH.  XII. 

hoisting  of  a  light  in  a  river  or  harbor  at  night,  amid  an 
active  commerce,  was  a  precaution  imperiously  demanded  by 
prudence,  and  the  omission  of  it  is  not  to  be  considered  other- 
wise than  as  negligence  per  se,  was  held  by  the  Chief  Justice 
of  Pennsylvania,  in  Simpson  v.  Hand.1  That  was  an  action 
on  the  case  to  recover  damages  for  injury  done  to  goods  on 
board  of  a  vessel  while  she  was  lying  at  anchor  in  the  river 
Delaware,  by  a  vessel  coming  up  the  river  in  the  night,  time ; 
and  the  Court  held,  that  if  the  anchored  vessel  was  moored  in 
the  channel  of  the  river  without  a  visible  light  burning  at  the 
time,  or  //  her  watch  was  not  on  deck,  and  did  not  do  what  was 
customary  for  the  purpose  of  avoiding  a  collision,  there  was 
such  negligence  as  to  bar  the  action  ;  though  there  might 
have  been  negligence  on  the  other  side. 

§  650.  Nothing  is  better  settled  in  the  Admiralty  than  that, 
in  dark  and  foggy  nights,  measures  of  strict  precaution  are 
expected  on  the  part  of  a  master  of  a  vessel,  in  order  to 
avoid  chances  of  collision  ;  and  if,  amid  nocturnal  darkness 
or  fog,  a  vessel  should  be  sailing  at  the  rate  of  eight  or  nine 
miles  an  hour,  when  she  ought  to  have  proceeded  only  at  the 
speed  of  three  or  four,  it  will  be  no  valid  excuse  for  the 
master  to  aver  that  he  could  not  prevent  the  accident  at  the 
moment  it  occurred,  if  he  could  have  used  measures  of  pre- 
caution, that  would  have  rendered  the  accident  less  probable. 
However  important  it  may  be  that  a  voyage  should  be  com- 
pleted in  the  most  speedy  manner,  such  speed  must  be  com- 
bined with  safety  to  other  vessels.  This  is  the  expressly 
declared  doctrine  of  the  Courts  of  Admiralty,  and  was 
applied  to  the  case  of  the  Virgil,  which  vessel,  sailing  upon  a 
dark  and  foggy  night,  with  her  topmast  studding-sails  set, 
and  coming  into  collision  with  the  sloop  Jean,  was  con- 


1  Simpson  v.  Hand,  6  Whart.  (Penn.)  R.  311.  That  opinion  approved 
by  Kent,  3  Kent,  Comm.  230,  n.  c.  (6th  edit.)  ;  and  Steamboat  Co.  v. 
Whilldin,  4  Harr.  (Del.)  R.  228. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY   WATER.  649 

demned  in  the  damage  sued  for.1  But  in  the  case  of  the 
Ebenezer,  it  was  held,  that  a  vessel  running  free  with  a  fair 
wind,  and  carrying  her  square  sail,  topmast  studding-sail, 
fore-and-aft  mainsail  and  gaff  topsail  set,  the  weather  being 
dark  and  thick,  and  the  night  foggy,  the  case  was  dismissed 
in  the  Admiralty  upon  the  ground  of  inevitable  accident. 
This  case  shows  how  much  depends  upon  the  courses  of  two 
vessels,  &c.,  and  the  Court  thought  there  were  many  diffi- 
culties in  the  case,  which  might  have  misled  both  parties.  It 
was  also  stated  in  behalf  of  the  Ebenezer,  that  the  reason 
she  carried  so  much  sail  as  she  did,  was,  that  a  very  large 
number  of  vessels  were  immediately  in  her  wake,  and  that 
she  carried  the  sail  in  question  for  the  purpose  of  avoiding 
the  possibility  of  any  of  the  vessels  running  into  her.2  In 
the  case  of  the  Itinerant,  the  Court  said  :  —  "It  is  unques- 
tionably the  duty  of  every  master  of  a  ship,  whether  in  an 
intense  fog  or  great  darkness,  to  exercise  the  utmost  vigi- 
lance, and  to  put  his  vessel  under  command  so  as  to  secure 
the  best  chance  of  avoiding  all  accidents,  even  though  such 
precautions  may  occasion  some  delay  in  the  prosecution  of 
the  voyage.  It  may  be,  that,  for  such  a  purpose,  it  would 
be  his  duty  to  take  in  his  studding-sails  ;  but  such  is  the  con- 
stantly varying  combination  of  circumstances,  arising  from 
locality,  ivind,  tide,  number  of  vessels  in  the  track,  and  other 
considerations,  that  the  Court  cannot  venture  to  lay  down  any 
general  rule,  ivhich  luould  absolutely  apply  in  all  cases"  3 


1  The  Virgil,  2  W.  Rob.  R.  201.     In  an  action  on  the  case  for  running 
down  the  plaintiff's  brig,  it  was  proved  that  the  defendant's  vessel  was 
sailing  in  the  channel  before  the  wind  having  her  studding-sails  set  at 
night,  and  that  the  plaintiff's  brig  was  sailing  by  the  wind,  and  the  jury 
found  a  verdict  for  the  defendant.     The  Court  granted  a  new  trial  for  the 
purpose  of  further  investigating  the  facts,  as  there  was  some  doubt  as  to 
the  propriety  of  carrying  studding-sails  at  such  a  time  and  in  such  a  place, 
and  also  as  to  whether  the  defendant's  captain  had  kept  a  proper  look-out. 
Jameson  v.  Dunkeld,  12  Moore,  R.  148. 

2  The  Ebenezer,  2  W.  Rob.  R.  206. 

3  The.Itinerant,  2  W.  Rob.  R.  236. 

55 


650  LAW   OF   CARRIERS.  [CH.  XH. 

§  650  a.  Steamers,  being  more  under  control  than  sailing 
vessels,  their  duty  in  regard  to  avoiding  collision  can  be  more 
definitely  stated.1  A  large  steamer  proceeding  on  a  dark 
night  in  the  Frith  of  Clyde,  a  very  thronged  thoroughfare,  at 
the  rate  of  from  twelve  to  fourteen  miles  an  hour,  came  in 
collision  with  a  small  schooner,  which,  being  deeply  laden, 
and  proceeding  against  the  tide  with  a  very  light  wind,  had 
very  little  way  on  her,  and  was,  therefore,  incapable  of 
altering  her  position.  The  schooner  showed  no  lights  and 
was  not  discovered  by  the  steamer  until  close  upon  her,  when 
a  collision  ensued,  in  consequence  of  which  the  schooner  al- 
most immediately  sunk.  It  was  held,  that,  under  the  circum- 
stances, the  steamer  was  responsible  for  the  damage,  her 
watch  and  look-out  (though  sufficient,  under  ordinary  circum- 
stances,) not  being-  sufficient  considering  the  darkness  of  the 
night,  and  the  rate  of  speed  of  the  steamer.2  A  large  steamer 
on  her  voyage  from  Kingston  to  Liverpool,  came  into  col- 
lision at  night  with  an  outward  bound  brig,  which,  in  conse- 
quence of  the  collision,  sunk  immediately,  with  some  of  her 
crew.  The  night  was  dark,  and  the  place  of  collision  was  a 
part  of  the  Channel  constantly  navigated  by  vessels.  The 
steamer  was  going  at  full  speed ;  she  carried  lights,  and  had 
but  one  man  on  her  look-out  station.  Although  the  brig  car- 
ried no  lights  properly  so  termed,  it  was  held  that  the  steamer, 
in  going  at  full  speed,  on  such  a  night,  in  such  a  locality,  and 
with  one  man  only  on  the  look-out,  was  improperly  navigated 
and  liable  to  the  whole  damage.3  Sjeam-vessels,  under  such 
circumstances,  are  not  justified  by  the  English  Court  of  Ad- 
miralty in  going  at  the  rate  of  ten  knots  an  hour  ;  if  one, 
going  at  that  rate,  come  into  collision  with  another  vessel, 
without  either  party  seeing  each  other,  the  steamer  will  be 


1  See  post,  §  656,  657,  663.     A  steamboat  can  be  stopped  in  nearly  her 
whole  length.     The  Perth,  3  Hagg.  R.  417. 

2  The  Londonderry,  High  Court  of  Admiralty  of  Ireland.    Pritch. 
Adm.  Dig.  129. 

3  The  Iron  Duke,  9  Jur.  476. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY   WATER. 

held  responsible  for  the  damage.1  To  constitute  a  good 
look-out,  there  must  be  a  sufficient  number  of  persons  sta- 
tioned for  the  purpose,  who  must  know  and  be  able  to  dis- 
charge that  duty.2 

§  651.  There  is  a  rule  of  navigation,  in  respect  to  sailing 
vessels,  which  undoubtedly  had  its  origin  in  the  customs  of 
navigation,  and  the  obligation  it  imposes  is  thus  stated  by 
Lord  Stowell  to  the  Trinity  Master,  in  the  case  of  the 
Woodrop  Sims,3  "  that  the  law  imposed  upon  the  vessel 
having  the  wind  free,  the  obligation  of  taking  proper  mea- 
sures to  get  out  of  the  way  of  a  vessel  close  hauled,  and  of 
showing  that  it  had  done  so  ;  if  not,  the  owners  were  respon- 
sible for  the  loss  which  had  ensued.  If  they  thought  proper 
precautions  were  taken  on  board  the  Woodrop,  then  it  would 
be  necessary  to  inquire  whether  the  measures  were  counter- 
acted and  defeated  by  improper  measures  taken  by  those  on 
board  the  other  ship."  We  have  seen  that  the  remedy  in 
cases  of  collision  lies  either  in  the  Courts  of  Common  Law, 
or  in  the  Admiralty  Court,  and  in  Handyside  v.  Wilson,  at 
Nisi  Prius,4  the  jury  found  the  rule  to  be,  that  the  ship  which 
is  going  to  windward  is  to  keep  to  windward,  and  that  ship 
that  has  the  wind  free  is  to  bear  away.  In  a  case  in  the 
Exchequer,  Bayley,  B.,  said,  that  the  party  who  has  the  wind 
should  give  way,  and  it  is  expected  he  will  make  room.6 
Therefore,  a  vessel  sailing  with  the  wind  is  bound  to  give 
way  to  one  sailing  by  the  wind  ;  and  the  vessel  sailing  by 
the  wind,  is  not  in  ordinary  circumstances  obliged  to  alter 
her  course.6  It  was  held  in  the  High  Court  of  Admiralty, 

1  The  Rose,  2  W.  Rob.  R.  2.     See  also  The  Perth,  3  Hagg.  R.  414. 

2  The  George,  9  Jur.  670  ;  Jameson  v.  Dunkeld,  12  Moore,  R.  148. 

3  The  Woodrop  Sims,  2  Dod.  R.  83  ;   and  see  Waring  t>.  Clarke,  5 
How.  (U.  S.)  R.  441. 

4  Handyside  v.  Wilson,  3  C.  &  Payne,  R.  528. 

5  Vennall  v.  Garner,  1  Crompt.  &  Mees   R.  21. 

6  Jameson  v.  Dunkeld,  12  Moore,  R.  148;  Steamboat  Co.  «.  Willdin, 
4  Barring.  (Del.)  R.  228. 


652  LAW   OF   CARRIERS.  [cH.  XII. 

in  the  case  of  the  Hope,  that  where  a  light  vessel,  with  the 
wind  free,  meets  with  a  laden  vessel,  close  hauled,  it  is  the 
duty  of  the  former  to  give  way,  and  the  latter  is  to  keep  her 
course  ;  and  if  the  night  is  so  excessively  dark,  that  the  per- 
sons on  board  the  former  vessel  could  see  only  a  short  dis- 
tance from  the  vessel,  this  circumstance  would  only  render 
it  the  more  incumbent  upon  the  crew  to  keep  a  good  look- 
out, and  not  to  depart  from  the  general  rule,  unless  compelled 
to  do  so  by  absolute  necessity.  Whoever  sets  up  an  excep- 
tion to  the  rule,  so  important  as  the  general  rule,  is  bound  to 
prove  that  facts  and  circumstances  occurred,  which  rendered 
the  rule  itself  no  longer  applicable.1 

§  652.  We  have  seen,  that  in  the  case  of  carriage  of  pas- 
sengers by  land,  the  established  rule  in  England  is,  that  in 
meeting,  each  party  shall  bear  or  keep  to  the  left,  and  that 
in  this  country  the  established  rule,  that  each  party  shall  bear 
or  keep  to  the  right.2  Were  it  left  to  chance,  or  to  the  hasty 


1  The  Hope,  1  W.  Rob.  R.  154.     See  Sills  v.  Brown,  9  C.  &  Payne, 
R.  601.     In  the  case  of  the  De  Cock,  in  the  High  Court  of  Admiralty,  the 
Parmelia  was  proceeding  up  the  channel,  east  by  north,  and  the  De  Cock 
was  coming  down  the  channel,  her  course  being  northwest.     The  wind 
was  nearly  southwest ;  therefore,  the  Parmelia,  which  was  sailing  on  the 
starboard  tack,  had  the  wind  free.     The  night  was  dark  and  hazy,  and 
although  a  good  look-out  was  kept  on  board  both  vessels,  a  collision  took 
place.     Dr.  Lushington  put  the  following  questions   to   the  two  elder 
brethren  of  the  Trinity  House,  by  whom  the  Court  was  assisted.     First, — 
"  Whether,  under  the  circumstances  of  the  case,  the  Parmelia,  sailing  up 
channel,  wilh  the  wind  free,  ought  not,  immediately  on  perceiving  the  De 
Cock,  to  have  given  away?"     Answer,  —  "She  ought  to  have  altered 
her  course."     Secondly,  —  "  Then,  suppose  it  was  so,  ought  the  De  Cock, 
seeing  this  state  of  things,  to  have  attempted  to  luff  up,  or  have  kept  her 
course,  or  have  put  her  helm  to  port  as  she  did?  "     Answer,  —  "  It  was 
wrong  to  put  her  helm  to  port."     The  Court  held,  upon  these  answers, 
that  both  vessels  were  to  blame,  and  directed  the  amount  of  damage  done 
by  the  De  Cock  to  be  brought  in  and  divided,  and  each  party  to  pay  their 
own  expenses.     22  Am.  Jurist,  464.     See  also  the  case  of  the  Speed,  2 
W.  Rob.  R.  225. 

2  Ante,  $  549. 


CH.  XII.]  PASSENGER   CARRIERS — BY  WATER.  653 

judgment  of  the  moment,  to  choose  the  side  each  opposing 
carriage  is  to  take,  all  safety  would  be  gone  ;  but  as  it  is,  the 
most  casual  observer  in  a  populous  English  or  American  city 
must  be  struck  by  the  precision  with  which  the  vehicles 
crowding  its  streets  pass  to  and  fro  without  injury  or  contact.1 
Ships  at  sea  require  a  rule  as  well  as  carriages  on  land,  but 
unfortunately  they  cannot  be  as  easily  comprehended,  and 
are  of  much  more  difficult  practical  application.  "  The 
combination  of  circumstances,  in  which  two  meeting  vessels 
find  themselves,  may  be  extensively  varied  by  the  state  and 
direction  of  the  wind,  and  the  relative  position  of  the  vessels 
towards  the  wind  and  towards  each  other."2  It  appears, 
that  an  order  promulgated  by  the  Trinity  House  Corporation 
in  England,  on  the  30th  of  October,  1840,  provides  as  fol- 
lows :  "  Whereas  the  recognized  rule  for  sailing  vessels  is, 
that  those  having  the  wind  fair  shall  give  way  to  those  on  a 
wind ;  that  when  both  are  going  by  the  wind,  the  vessel  on 
the  starboard  tack  shall  keep  her  wind,  and  the  one  on  the 
larboard  tack  bear  up,  thereby  passing  each  other  on  the  lar- 
board hand  ;  that  when  both  vessels  have  the  wind  large  or 
abeam  and  meet,  they  shall  pass  each  other  in  the  same  way 
on  the  larboard  hand,  to  effect  which  two  last  mentioned 
objects,  the  helm  must  be  put  to  port."  3  The  replies  elicited 


1  See  Art.  in  Westm.  Review,  Sept.  1844,  p.  60. 

3  Westm.  Review,  supra. 

3  Explanation  of  the  sea  phrases  used  in  the  above  order,  and  in  the 
adjudged  cases.  —  Bear-up,  or  Bear-away.  To  put  the  helm  up  (or  to  the 
windward  or  weather  side)  and  keep  a  vessel  away  to  leeward.  On  a 
wind,  Close  hauled,  on  a  Bowline.  Applied  to  a  vessel  which  is  sailing  with 
her  yards  braced  up,  so  as  to  get  as  much  as  possible  to  windward. 
Large  —  Free.  Applied  to  a  vessel  sailing  with  a  fair  wind.  Larboard. 
The  left  side  of  a  vessel  looking  forward.  Lee.  The  side  opposite  to  that 
from  which  the  wind  blows.  A-Iee.  The  situation  of  the  helm  when  the 
tiller  is  put  to  the  lee  side.  Leeway.  When  a  vessel  loses  by  drifting  to 
leeward.  Luff.  To  put  the  helm  down,  (or  to  the  lee  side)  so  as  to  bring 
the  ship  nearer  the  wind.  Port.  To  port  the  helm  is  to  put  the  tiller  to 
the  larboard  side.  Starboard.  The  right  side  of  a  vessel  looking  forward. 
55* 


654  LAW   OF   CARRIERS.  [cH.  XII. 

by  questions  addiessed  to  witnesses  by  the  select  committee 
of  Parliament  on  shipwrecks,  state,  as  one  of  the  causes  of 
the  many  casualties  happening  by  the  collision  of  vessels  at 
sea,  the  ignorance  of,  or  inattention  to,  the  Trinity  Rules.1 
Although  deriving  their  force  from  the  Trinity  Board,  those 
rules  are  not  really  enacted  by  that  corporation,  being  of  date 
older  far  than  its  charter  ;  but  notwithstanding  they  are  of 
immemorial  authority,  they  have  been  so  much  doubted  and 
misunderstood,  that  they  seem  to  be  attended  by  the  uncer- 
tainties of  oral  tradition  ;  and  the  only  authoritative  written 
exposition  of  them,  is  derived  through  the  perplexities  of  an 
analysis  of  the  successive  judicial  decisions  in  the  High  Court 
of  Admiralty ;  2  and  in  truth  they  cannot  be  fully  compre- 
hended, and  therefore  not  satisfactorily  discussed  by  one  who 
has  never  known  how  to  "  hand,"  nor  "  reef,"  nor  "  steer." 
They  by  no  means  constitute  a  law  per  se,  but  at  the  same 
time  they  are  regarded  by  the  English  High  Court  of  Admi- 
ralty as  of  authority.3  An  alteration  of  a  ship's  course, 
being  at  all  times  inconvenient,  when  under  sail,  the  altera- 
tion is  usually  made  by  one  of  the  two  ships  only  ;  and  the 
rule  is  easily  understood,  that  a  vessel  sailing  free  shall  be 
the  one  to  give  way  ;  and  the  expression  "  giving  way," 
means  not  crossing  a  vessel's  bows,  but  going  under  her 
stern.4  When  two  vessels  approach  each  other  on  opposite 
tacks,  especially  when  one  is  close  hauled,  and  the  other 
vessel  has  the  wind  free,  the  rule  is  that  the  latter  must  give 
way,  but  if  both  have  the  wind  against  them,  the  one  on  the 
larboard  tack  must  give  way,  and  the  one  on  the  starboard 
tack  is  to  keep  her  course.6 


To  starboard  the  helm  is  to  put  the  tiller  to  the  starboard  side.     (Seaman's 
Manual.)     See  Encyclopedia  Britannica,  Art.  "  Seamanship." 
1  Westm.  Review,  supra.  2  Ibid. 

3  2  Kent,  Comm.  230  ;  and  see  the  case  of  The  Duke  of  Sussex,  1  W. 
Rob.  R.  274  ;  The  Catharine,  2  Hagg.  R.  145 ;  The  Ligo,  Ib.  356  ;  The 
Thames,  5  Rob.  R.  345 ;  The  Dundee,  1  Hagg.  R.  109. 

4  The  Rose,  2  W.  Rob.  R.  1. 

5  The  Seringapatam,  Pritch.  Adm.  Dig.  131. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  655 

§  653.  Two  vessels  may  not  be  approaching  each  other  in 
a  straight  line,  or  in  any  thing  like  a  straight  line,  and  the 
courses  they  are  pursuing  may  cross  each  other  angularly. 
The  application  of  the  Trinity  House  regulations,  with  re- 
spect to  two  vessels  meeting  each  other,  the  one  upon  the 
larboard  and  the  other  upon  the  starboard  tack,  depends  upon 
the  presumption  that  the  two  vessels  are  directly  approaching 
each  other,  and  is  not  intended  to  apply  when  the  heads  of 
the  respective  vessels  are  lying  in  different  directions.  If  one 
of  the  vessels  is  lying  with  her  head  to  the  S.  E.,  and  the 
course  of  the  other  is  N.  N.  W.  half  W.,  it  is  obvious  that 
the  two  vessels  are  not  approaching  with  their  heads  opposing 
each  other  ;  and  therefore  it  is  held,  the  rule  does  not  apply 
to  the  circumstances  of  the  case.1  Hence  it  appears,  that  no 
effectual  single  law  can  be  devised  to  suit  all  circumstances, 
and  it  is  usual  to  state  the  existing  regulations  in  the  form 
adopted  by  the  Trinity  Board. 

§  654.  In  the  case  of  the  Ann  and  Mary,  it  was  held,  that 
in  doubtful  circumstances  where  there  is  a  probability  of  col- 
lision, a  vessel  on  the  larboard  tack,  although  close  hauled,  is 
bound  to  give  way  to  a  vessel  on  the  starboard  tack,  notwith- 
standing the  latter  may  be  sailing  with  the  wind  free.  One 
peculiar  feature  in  this  case  arises  from  the  fact,  that  an 
action  had  at  Common  Law  had  been  brought  by  the  owners 
of  the  Ann  and  Mary,  the  vessel  proceeded  against,  against 
the  owners  of  the  Lady  Clinton,  on  account  of  the  collision 
in  question  ;  and  on  the  trial  of  that  cause  a  verdict  was 
found  for  the  plaintiffs.2 

§  655.  Rules  founded  on  the  like  usages,  and  the  general 


1  The  London  Packet,  2  W.  Rob.  R.  213. 

8  The  Ann  and  Mary,  2  W.  Rob.  R.  189.  In  the  case  of  the  Travel- 
ler, it  was  held  to  be  the  duty  of  the  vessel  on  the  larboard  tack,  to  give 
way  to  a  vessel  on  the  starboard  tack,  without  considering  whether  the 
other  vessel  be  one  or  more  points  to  leeward.  2  W.  Rob.  R.  197 


656  LAW   OF    CARRIERS.  [CH.  XII. 

convenience  of  commerce,  have  been  recognized  by  high 
authority  in  this  country.1  In  the  case  of  Lowry  v.  The 
Steamboat  Portland,2  it  was  certified  by  experienced  naviga- 
tors, and  adjudged  by  the  Court,  as  the  rule  on  the  subject, 
that  when  two  vessels  approach  each  other,  both  having  a 
free  or  fair  wind,  each  vessel  passes  to  the  right.  The  usage 
in  the  river  Delaware  is  for  vessels  having  the  tide  to  keep 
further  out ;  for  those  stemming  the  tide,  nearer  the  shore  ; 
and  such  usage  it  is  proper  to  consider  in  cases  of  collision.3 

§  656.  With  regard  to  steam-vessels,  they  must  always 
back  their  engines,  when  hailed  in  a  fog.  The  steamer 
Perth  was  going  in  a  fog  with  unabated  speed  on  a  track 
frequented  by  coasters,  and  there  was  no  order  given,  when 
she  was  hailed,  to  stop  her  engines ;  and  she  was  held  liable 
to  the  amount  and  damages  and  costs  in  a  suit  against  her 
for  a  collision  which  ensued.4  In  the  case  of  the  James 
Watt,  it  was  held,  that  where  a  steamer  coming  down  a 
river  in  a  dark  night,  meets  a  sailing  vessel  beating  up  the 
river,  and  the  master  of  the  steamer  is  in  doubt  what  course 
the  sailing  vessel  is  upon,  it  is  the  duty  of  the  master  of  the 
steamer  to  ease  her  engines  and  to  slacken  her  speed,  until 
he  ascertains  the  course  of  the  sailing  vessel.  In  such  a  case, 
the  defence  that  the  master  of  the  steamer  immediately  put 
her  helm  to  port,  in  compliance  with  the  Trinity  House 
regulations,  will  not  be  sustained.6 

§  657.  As  a  steam-vessel  has  greater  power  and  is  more 
under  command,  she  is  bound  always  to  give  way  to  a  sail- 


1  Story  on  Bailm.  §  611  a ;  3  Kent,  Comra.  230,  231  ;  Rogers  v.  The 
Brig  Rival,  (D.  Co.  Mass.)  Law  Rep.  May,  1845. 

2  Lowry  v.  The  Steamboat  Portland,  in  the  United  States  Dist.  Co.  for 
Mass.  1  Law  Rep.  313. 

3  Steamboat  Co.  v.  Whillden,  4  Harring.  (Del.)  R.  228. 

4  The  Perth,  3  Hagg.  R.  414.     See  also  the  Rose,  1  W.  Rob.  R.  274. 
*  The  James  Watt,  2  Rob.  R.  270. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER. 

ing  vessel.  A  steamer  is  indeed  generally  deemed  as  always 
sailing  with  a  free  and  fair  wind,  and  is  therefore  bound  to 
do  whatever  a  common  vessel  going  with  a  free  or  fair  wind 
would,  under  similar  circumstances,  be  required  to  do  in 
relation  to  any  other  vessels,  which  it  meets  in  the  course  of 
the  navigation.1  In  the  case  of  the  Columbine,  it  was  held, 
that  if  a  steamer  and  a  sailing  vessel  are  approaching  each 
other,  and  there  is  a  probability  of  a  collision,  the  general 
rule  of  navigation  must  be  strictly  adhered  to  ;  and  neither 
haziness,  nor  the  sailing  vessel  being  first  descried  from  the 
starboard  side  of  the  steamer,  affords  a  sufficient  justification 
for  the  conduct  of  the  steamer  in  departing  from  the  rule.2 

§  658.  Two  steamers  may  be  sailing  in  opposite  directions, 
and  there  may  be  a  reasonable  probability,  if  they  continue 
their  course,  of  their  coming  in  collision.  The  regulation 
of  the  Trinity  House  in  such  case  is  drawn  up  with  great 
precision,  and  is  not  difficult  to  comprehend  ;  it  is  as  follows  : 
When  steam-vessels  on  different  courses  must  unavoidably 
or  necessarily  cross  so  near  that  by  continuing  their  respect- 
ive courses  there  would  be  risk  of  coming  in  collision,  each 
vessel  shall  put  her  helm  to  port  so  as  always  to  pass  on  the 


1  Story  on  Bailm.  §  611  b;   Steamboat  Co.  v.  Whillden,  4  Hairing. 
(Del.)  R.  228  ;  The  Gazelle,  Eng.  Jurist,  June  3,  1843,  p.  497  ;  Hawkins 
v.  Dutchess  and  Orange  Steamboat  Co.  2  Wend.  (N.  Y.)  R.  452  ;  Lowry 
v.  Steamboat  Portland,  ub.  sup.     In  a  cause  of  collision  against  the  Shan- 
non —  a  steam-vessel  —  the  Court,  assisted  by  Trinity  masters,  pronounced 
for  damages  and  costs,  holding  that  the  steam-vessel,  though  on  the  star- 
board tack,  being  more  under  command,  and  manifestly  having  seen  the 
other  vessel,  was  to  blame  in  not  having  given  way.     The  Shannon,  173. 
A  custom,  among  the  navigators  of  steamboats,  on  a  river,  to  preserve 
particular  situations,  in  ascending  and  descending,  the  Supreme  Court  of 
Alabama  thought,  would  seem  salutary  and  reasonable,  and  analogous  to 
the  rule  governing  ships  passing  each  other  at  sea.     Such  custom,  it  was 
considered,  would,  if  proved,  bind  navigators  of  steamboats  to  its  observ- 
ance, and  a  failure  to  observe  it  would  be  at  the  peril  of  the  owners.    Jones 
v.  Pitcher,  3  Stew.  &  Port.  (Ala.)  R.  135. 

2  The  Columbine,  2  W.  Rob.  R.  272. 


658  LAW   OF    CAREIEKS.  [cH.  XII. 

larboard  side  of  each  other."  This  rule,  emanating  from  the 
Trinity  House,  although  it  cannot  be  considered  as  constitut- 
ing law  per  se,  is  nevertheless  adopted  as  a  rule  in  the  Admi- 
ralty ;  and  the  English  High  Court  of  Admiralty  consider  it 
important,  that  it  should  be  distinctly  understood,  that  they 
should  consider  the  rule  of  binding  authority  upon  the  owners 
of  steam-vessels.  If  the  masters  of  such  vessels,  that  Court 
have  announced,  shall  think  fit  not  to  comply  with  the  rule  in 
question,  in  so  doing  they  will  be  guilty  of  unseamanlike 
conduct,  and  their  owners  will  be  responsible  for  the  con- 
sequences that  may  result  from  their  disobedience  of  it. 
But  the  obvious  meaning  of  the  rule  is  held  to  be,  that  it  is 
intended  to  apply  whenever  two  steam-vessels  are  approach- 
ing each  other  in  contrary  directions,  and  there  is  a  reasona- 
ble probability,  that,  by  standing  on,  a  collision  may  ensue  ; 
not,  only  where  such  collision  is  inevitable.  If  no  reasonable 
apprehension  of  a  collision  is  to  be  entertained,  and  the 
observance  of  the  rule  would  unnecessarily  throw  each  vessel 
out  of  its  course,  it  would  be  an  absurdity  to  suppose  that 
under  such  circumstances  the  rule  was  intended  to  apply.1 
Mr.  Justice  Woodbury,  in  a  case  decided  in  the  Supreme 
Court  of  the  United  States,  observed,  that  there  is  no  such 
rule  as  that  prescribed  by  the  Trinity  House,  in  this  country, 
though  he  considered  the  principle  on  which  it  rested,  a  sound 

1  By  Sir  Stephen  Lushington,  in  the  case  of  the  Duke  of  Sussex, 
1  W.  Rob.  R.  274.  The  above-mentioned  rule  of  the  Trinity  House, 
requiring  steamboats  to  pass  each  other  on  the  larboard  side,  was  expressly 
enjoined  by  the  State  of  New  York  more  than  twenty  years  ago,  by  statute. 
N.  Y.  Rev.  Slat.  Part  I.  tit.  10,  §  1.  By  the  Stat.  9  &  10  Viet.  c.  100, 
s.  9,  every  steam-vessel  when  meeting  or  passing  any  other  steam-vessel 
shall  pass  as  far  as  may  be  safe  on  the  port  side  of  such  other  vessel,  and 
every  steam-vessel,  navigating  any  river  or  narrow  channel,  shall  keep  as 
far  as  is  practicable  to  that  side  of  the  fair-way  or  mid-channel  of  such 
river  or  channel  which  lies  on  the  starboard  side  of  such  vessel,  due  regard 
being  paid  to  the  tide,  and  to  the  position  of  each  vessel  in  such  tide  ;  and 
the  master  or  other  person  in  charge  of  such  vessel  neglecting  to  observe 
such  regulations,  shall  for  each  default  be  liable  to  a  penalty  not  exceeding 
50/. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  659 

one.1  This  meaning  undoubtedly  is,  that  no  such  rule  has 
yet  been  recognized  as  obligatory  by  any  authoritative  judi- 
cial decision.  If  it  should  be  shown  in  this  country  that  there 
is  a  usage  well  established  to  that  effect,  it  may  be  supposed 
that  our  Courts  would  not  hesitate  to  enforce  it.2 

§  659.  In  a  cause  of  collision  in  the  Admiralty,  against  a 
steam-vessel,  for  damage  occasioned  to  her  by  another  steam- 
vessel,  the  grounds  of  defence  were  twofold  :  first,  an  alleged 
custom,  superseding  the  Trinity  House  rule  ;  and  secondly, 
that  the  circumstances  of  the  case  were  such  that  the  rule  had 
no  application  in  that  instance  ;  or,  in  other  words,  that  the 
two  vessels  were  pursuing  courses  so  widely  distant  from 
each  other,  that  there  was  no  reasonable  probability  that  a 
collision  would  have  occurred.  The  facts  set  forth  were, 
that  the  steamer  Lightning  was  proceeding  up  the  river 
Thames,  and  had  arrived  in  the  Half-way  Reach,  about  five 
miles  from  Woolwich,  when  the  steamer  Duke  of  Sussex 
was  seen  coming  down  with  the  tide  "  end  on  "  towards  the 
Lightning ;  that  when  the  two  vessels  had  approached  to 
within  about  a  quarter  of  a  mile  of  each  other,  it  was 
obvious  to  the  persons  on  board  the  Lightning,  that  if 
both  vessels  continued  their  respective  courses,  a  collision 
would  probably  ensue.  The  helm  of  the  Lightning  was 
accordingly  put  to  port,  in  conformity  with  the  rule  of  the 
Trinity  House,  but  the  helm  of  the  Duke  of  Sussex,  instead 
of  being  put  in  like  manner  to  port,  was  put  to  starboard, 
and  in  a  few  seconds  she  ran  her  bowsprit  into  the  Light- 
ning's paddle-box,  breaking  the  paddle  and  wheel  by  the 
collision.  The  defence  set  up  by  the  owners  of  the  Duke  of 
Sussex  was,  that  the  tide  at  the  time  the  collision  occurred 
was  about  one  third  ebb  ;  that  the  full  force  of  the  ebb  tide 
was  northward  of  Half-way  Reach,  and  that  it  was  the 


1  Waring  v.  Clarke,  4  How.  (U.  S.)  R.  441. 

2  Conkl.  Adra.  Jurisdict.  311. 


660  LAW   OP   CARRIERS.  [cH.  XII. 

practice  and  custom  of  steam-vessels  coming  up  the  river  to 
keep  to  the  south  side  of  the  mid-channel,  and  those  going 
down  to  adhere  to  the  north  side  ;  that  the  Duke  of  Sussex 
was  pursuing  the  usual  course,  and  if  the  Lightning  had 
done  the  same,  the  two  vessels  might  have  passed  clear  of 
each  other  ;  that  there  was  no  necessity  for  the  persons  on 
board  that  vessel  to  have  ported  her  helm,  and  it  was  only 
in  consequence  of  the  Lightning's  deviation  from  the  cus- 
tomary rule  that  the  collision  was  occasioned.  Sir  Stephen 
Lushington  said :  — "  Supposing  the  custom  to  exist  as 
stated,  it  can  only  be  acknowledged  where  there  is  an  open 
way  for  each  vessel  to  pass  without  any  risk  of  a  collision. 
In  the  present  case  it  is  directly  averred,  on  the  part  of  the 
Lightning,  that  the  two  vessels  were  approaching  each  other 
'  end  on  ; '  in  which  case  I  distinctly  lay  it  down  as  my  opin- 
ion, that  the  rule  was  to  be  observed,  and  the  custom,  if  any 
such  custom  exist  at  all,  be  superseded.  If  there  be  any 
risk,  convenience  must  give  way  to  the  rule  ;  if  it  were  other- 
wise, the  masters  of  steam-vessels  would  always  be  looking 
out  for  circumstances  to  justify  them  in  departing  from  the 
rule  ;  the  rule  would  be  disregarded  for  the  sake  of  a  little 
more  or  less  convenience,  and  the  greatest  uncertainty  would 
ensue  in  consequence."  With  these  observations  he  left  the 
first  part  of  the  defence  for  the  Trinity  Masters  to  determine 
how  far  it  was  imperative  upon  the  owners  of  the  Duke  of 
Sussex  to  observe  the  rule.  Upon  the  second  part  of  the 
defence  he  relied  on  their  judgment  to  decide  whether  the 
two  vessels  were  so  far  distant  from  each  other,  as  to  render 
it  altogether  unnecessary  for  the  Lightning  to  have  ported 
her  helm  under  the  circumstances  of  the  case.  If,  under  the 
facts  disclosed,  there  was  a  reasonable  probability  of  collision, 
he  apprehended  it  was  clear  that  the  Lightning  acted  pro- 
perly, and  that  the  Duke  of  Sussex  was  to  blame.  The 
reply  of  the  Trinity  Masters  was  :  —  "  The  Lightning  was 
thrown  into  the  middle  of  the  river  to  avoid  some  colliers ; 
and,  under  the  circumstances  of  the  case,  we  think  there 
was  such  a  probability  of  a  collision,  that  the  Lightning 


CH.  XII.]  PASSENGER  CARRIERS  —  BY   WATER.  661 

adopted  the  right  course,  and  the  accident  was  caused  by  the 
misconduct  of  the  Duke  of  Sussex."  1 

§  660.  We  have  seen,  that  the  rules  of  the  road  to  be  ob- 
served by  carriers  of  passengers  by  land  are  not  inflexible, 
although,  if  they  are  disregarded,  more  care  must  be  exer- 
cised, and  a  better  look-out  kept  to  avoid  collision  than  would 
be  necessary,  provided  they  were  strictly  observed  ;  2  and 
situations  and  circumstances,  it  was  said,  may  frequently 
arise  where  a  deviation  from  the  acknowledged  rules  would 
not  only  be  justifiable,  but  absolutely  necessary.3  The  same 
doctrine  is  applicable  to  carriers  of  passengers  by  water  ; 
and  a  vessel  is  not  to  be  run  into  because  she  is  out  of  place.4 
Mr.  C.  Justice  Best,  in  a  case  of  collision  of  vessels  at  Nisi 
Prius,  in  summing  up,  said  that  he  agreed,  that  although 
there  might  be  a  rule  of  the  sea,  yet  a  man  who  has  the 
management  of  one  ship  is  not  to  be  allowed  to  follow  that 
rule  to  the  injury  of  the  vessel  of  another,  when  he  could 
avoid  the  injury  by  pursuing  a  different  course  ;  but  if  the 
matter  comes  into  any  doubt,  as,  for  instance,  in  the  case  of 
a  dark  night,  then  the  rule  is  to  regulate  the  parties.5 

§  661.  The  rules  of  the  sea,  in  respect  to  navigation,  it  is 
always  admitted,  are  subordinate  to  the  rule  prescribed  by 
common  sense.  Thus,  if  a  vessel  goes  so  near  to  a  rock  on 
the  land,  that,  by  following  the  rules,  she  would  inevitably 
get  on  shore,  no  rule  should  prevail  over  the  preservation  of 


1  The  Duke  of  Sussex,  1  W.  Rob.  R.  274. 

2  Ante,  $  549,  et  seq. 

3  Lowry  v.  The  Steamboat  Portland,  1  Law  Rep.  313. 

4  Cummings  v.  Spruance,  4  Harring.  (Del.)  R.  315;   Vanderbilt  v. 
Turnp.  Co.  2  Const.  (N.  Y.)  R.  479.     Steamboats  in  the  river  Missis- 
sippi are  not  necessarily  liable  for  sinking  flat  boats,  by  being  out  of  the 
usual  channel,  for  the  purpose  of  obtaining  wood,  passengers,  or  freight ; 
there  must  be  some  negligence  on  the  part  of  the  officers  of  the  steamboat, 
in  order  to  render  her  liable.   Western  Belle  v.  Wagner,  11  Missou.  R.  30. 

5  Handyside  v.  Wilson,  3  C.  &  Payne,  R.  528. 

56 


662  LAW    OF    CARRIERS.  [CH.  XII. 

property  or  of  human  life.1  It  was  urged  in  the  case  of  the 
Hope,2  that  if  it  was  in  the  power  of  one  of  the  vessels 
which  came  into  collision,  to  have  avoided  the  collision  by 
giving  way,  she  was  bound  to  have  done  so,  notwithstanding 
the  rule  of  navigation.  This  the  Court  admitted  to  be  true, 
as  a  general  proposition,  and  said  that  "  no  vessel  should  un- 
necessarily incur  the  probability  of  a  collision  by  a  pertina- 
cious adherence  to  the  strict  rule  of  navigation."  "  If  a 
steam-vessel,"  said  the  Court,  "should,  for  instance,  be  near- 
ing  another  sailing  vessel,  and  such  vessel  should  be  steered 
erroneously  ;  if  the  master  of  the  steam-vessel  should  wilfully 
say  '  this  vessel  is  steering  wrong,  but  we  will  keep  our 
course,'  and  a  collision  ensues  in  consequence,  I  should 
undoubtedly  hold  the  steam-vessel  was  to  blame."  But  the 
steam-vessel  would  be  exonerated  if  the  sailing  vessel  was 
steering  wrong,  and  the  former  did  not  strictly  comply  with 
the  rule  of  navigation  if  she  did  all  that  was  reasonable 
under  the  circumstances,  and  a  collision  unintentional  should 
take  place  between  them.  A  steam- vessel  going  down 
channel  in  a  dark  night,  on  seeing  the  lights  of  a  ship  ahead, 
ported  her  helm,  but  did  not  put  it  hard  a-port  in  the  first 
instance.  The  ship  which  was  coming  up  channel  mistook 
the  lights  of  the  steam-vessel  for  those  of  a  lugger  at  anchor, 
and  starboarded  her  helm  for  the  purpose  of  passing  within 
hail  of  her,  in  consequence  of  which  a  collision  took  place. 
It  was  held  that  the  steamer,  (though  the  collision  would 
have  been  avoided  had  she  put  helm  hard  a-port  in  the  first 
instance,)  did  all  she  was  called  upon  to  do,  having  reason  to 
expect,  that  the  ship  would  either  have  kept  her  course,  or  put 
her  helm  to  port ;  and  that  the  ship  was  in  culpable  error  in 
starboarding  instead  of  porting  her  helm,  as  some  uncertainty 
must  have  existed  as  to  the  character  of  the  vessel  carrying 
the  lights,  and  that  she  was,  therefore,  liable  for  the  damage 
occasioned  by  the  collision.8 

1  The  Friends,  1  Rob.  R.  469  ;  and  see  Hawkins  v.  The  Dutchess  and 
Orange  Steamboat  Co.  2  Wend.  (N.  Y.)  R.  452. 

2  The  Hope,  1  W.  Rob.  R.  154. 

3  The  Sappho,  9  Jur.  560. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY   WATER.  663 

§  662.  In  Lovvry  v.  The  Steamboat  Portland,1  the  learned 
District  Judge  (Davis)  took  the  opinion  in  writing  of  some 
distinguished  nautical  men  under  oath,  who,  among  other 
things,  returned  this  answer:  —  "  In  our  answers  to  former 
questions,  we  have  stated  the  rule  or  usage  to  be,  that  when 
two  vessels  are  approaching  each  other,  both  having  the 
wind  free,  and  consequently  the  power  of  readily  controlling 
their  movements,  the  vessel  on  the  larboard  tack  shall  give 
way,  and  thus  each  pass  to  the  right.  This  rule  should 
govern  vessels,  too,  sailing  on  the  wind,  and  approaching 
each  other,  when  it  is  doubtful  which  is  to  windward.  But 
if  the  vessel  on  the  larboard  tack  is  so  far  to  windward,  that 
if  both  persist  in  their  course,  the  other  will  strike  her  on  the 
leeward  side  abaft  the  beam,  or  near  the  stem,  in  such  case 
the  vessel  on  the  starboard  tack  must  give  way,  as  she  can 
do  so  with  greater  facility,  and  less  of  time  and  distance  than 
the  other.  These  rules  are  particularly  intended  to  govern 
vessels  approaching  each  other,  under  circumstances  that 
prevent  their  course  and  movements  being  readily  ascer- 
tained with  accuracy  ;  for  instance,  in  a  dark  night  or  dense 
fog.  At  other  times,  circumstances  may  render  it  expedient 
and  proper  to  depart  from  them ;  for  we  consider  them  all 
subordinate  to  the  rule  prescribed  by  common  sense,  and 
applicable  to  all  cases,  under  any  circumstances,  which  is 
that  every  vessel  shaU  keep  clear  of  every  other  vessel,  when 
she  has  the  power  to  do  so,  notwithstanding  such  other  may 
have  taken  a  course  not  conformable  to  established  usage. 
We  can  scarcely  imagine  a  case,  in  which  it  would  be  justi- 
fiable to  persist  in  a  course,  after  it  had  become  evident  that 
collision  would  ensue,  if  by  changing  such  course  the  col- 
lision could  be  avoided." 

§  663.  In  an  action  at  Common  Law  (of  the  case)  brought 
to  recover  damages  for  an  injury  sustained  by  the  plaintiff 
in  consequence  of  the  running  of  a  steamboat  upon  a  sloop 

l  Ante,  §  655 ;  Steamboat  Co.  v.  VVhillden,  4  Harring.  (Del.)  R.  228. 


664  LAW   OF    CARRIERS.  [CH.  XII. 

belonging  to  the  plaintiff,  while  navigating  the  river  Hud- 
son ;  it  appeared  on  the  trial,  that  the  two  vessels  met  just 
below  the  overslaugh  below  Albany.  The  sloop  was  going 
down  the  river  with  a  fair  but  light  breeze  at  the  rate  of  two 
miles  an  hour,  and  the  steamboat  was  going  up  the  river  at 
the  rate  of  six  or  seven  miles  an  hour.  The  sloop  had  just 
crossed  the  bar  in  the  usual  channel,  and  necessarily  ran 
near  the  eastern  shore,  the  steamboat  was  also  close  in  on 
the  same  shore;  the  officers  of  both  vessels  hailed;  the 
plaintiff  on  board  his  sloop  called  to  the  officers  of  the  steam- 
boat to  stop  the  engine  ;  the  pilot  of  the  boat  called  to  the 
plaintiff,  who  was  at  the  helm  of  his  sloop,  to  bear  away ; 
the  plaintiff  did  bear  away,  but,  as  he  had  but  little  head- 
way on  his  vessel,  he  made  but  little  progress.  The  engine 
of  the  steamboat  was  stopped,  but  the  boat  was  not  backed, 
as  she  might  have  been,  and  struck  with  her  bow  the  waist 
of  the  plaintiff's  sloop  and  injured  her  materially.  The 
verdict  being  for  the  plaintiff,  it  was  moved  to  be  set  aside, 
but  a  new  trial  was  denied,  the  Court,  by  Savage,  C.  J., 
saying  :  —  "  The  real  question  is,  whether  the  officers  of  the 
steamboat  were  not  guilty  of  negligence  in  refusing  or  neg- 
lecting to  exercise  the  power  they  possessed,  which  would 
have  prevented  the  injury.  The  boat  was  perfectly  under 
the  control  of  its  officers,  the  sloop  was  not ;  the  officers  of 
the  boat  did  not  endeavor  to  avoid  the  collision,  which  they 
might  have  done,  either  by  backing  their  boat,  or  by  going 
on  the  west  side  of  the  sloop,  where  there  was  room  enough 
and  water  enough.  The  sloop  was  compelled  to  go  near  the 
east  shore,  in  order  to  pass  the  bar  with  safety  ;  and,  after 
passing  the  bar,  the  captain  did  all  in  his  power  in  order  to 
avoid  the  collision,  by  endeavoring  to  go  west  of  the  boat ; 
but,  from  the  slow  motion  of  his  sloop,  this  was  impractica- 
ble before  the  boat  struck  him.  This  appears  a  strong  case 
of  negligence,  if  not  of  wilful  injury."  1 

1  Hawkins  v.  The  Dutchess  and  Orange   Steamboat   Co.  2  Wend. 
(N.  Y.)  R.  452. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  666 

§  664.  The  owner  of  a  vessel,  which,  through  the  fault  or 
negligence  of  any  one  on  board,  injures  another  vessel  by 
running  a-foul  of  her,  is  liable  to  the  injured  party,  although 
there  is  a  pilot  on  board  who  has  the  entire  control  and  man- 
agement of  the  vessel.1  It  is  more  convenient,  it  is  held, 
that  the  owner  of  such  vessel  should  seek  his  remedy  against 
the  pilot,  whom  he  has  selected  for  this  service,  than  that  the 
injured  party  should.  It  is  also,  it  is  held,  more  conformable 
to  the  general  spirit  of  the  law  ;  for  although  the  pilot  holds 
his  commission  under  government,  yet  in  many  respects  he 
is  the  servant  of  the  owner  who  employs  him,  and  in  regard 
to  the  time  of  sailing,  is  undoubtedly  under  the  direction  of 
the  owner.  The  master,  in  such  case,  would  not  be  liable, 
for  he  is  answerable  only  in  respect  of  his  authority  over  the 
vessel,  which  authority  is  entirely  suspended  by  that  of  the 
pilot,  when  the  vessel  is  under  sail,  within  pilot  ground.2  In 


1  Yates  v.  Brown,  8  Pick.  (Mass.)  R.22  ;  Shaw  v.  Reed,  9  Watts  &  S. 
(Penn.)  R.  72  ;  Smith  v.  Condry,  1  How.  (U.  S.)  R.  28  ;  Bussy  v.  Don- 
aldson, 4  Dallas,  R.  206;  Fletcher  v.  Braddick,  5  Bos.  &  Pull.  R.  182. 
And  see  ante^^  193,  note. 

2  Opinion  of  the  Court  by  Parker,  C.  J.,  in  Yates  v.  Brown,  ub.  sup. 
In  this  case,  it  appeared  on  trial,  that  the  Napoleon,  when  sailing  out  of 
the  harbor  of  Boston,  bound  on  a  foreign  voyage,  with  a  pilot  on  board, 
came  in  contact  with  the  Only  Son,  which  was  lying  in  the  stream,  by 
which  the  bowsprit  of  the  Only  Son  was  injured.     One  of  the  defendants 
was  on  board  the  Napoleon  when  the  accident  happened.     A  verdict 
having  been  found  for  the  plaintiffs,  which  settled  the  amount  of  damage, 
and  the  fact  of  the  mismanagement  of  the  defendant's  vessel,  the  question 
was  reserved  for  the  whole  Court,  whether  there  being  a  person  duly 
authorized  to  pilot  the  Napoleon,  the  owners  of  the  vessel  were  liable  for 
an  injury  from  negligence  or  mismanagement  in  navigating  the  vessel  out 
of  the  harbor.     The  captain  of  a  sloop  of  war,  it  has  been  held,  is  not 
liable  for  damage  done  by  her  running  down  another  vessel ;  the  mischief 
appearing  to  have  been  done  during  the  watch  of  the  lieutenant,  who  was 
upon  deck,  and  had  the  actual  direction  and  management  of  the  steering 
and  navigating  of  the  sloop  at  the  time,  and  when  the  captain  was  not 
upon  deck,  nor  was  called  by  his  duty  to  be  there.     The  master  was  a 
captain  in  the  naval  service,  and  had  no  power  of  appointing  the  officers 
or  crew  on  board  ;  and  there  is  no  reason  for  making  one  man  liable  for  the 

56* 


666  LAW   OF   CARRIERS.  [cH.  XII. 

Snell  v.  Rich,  in  New  York,  the  vessel  which  run  foul  of 
another  vessel  lying  at  anchor,  and  carried  away  her  bow- 
sprit, was  sailing  at  the  time  out  of  the  harbor  with  a  pilot 
on  board,  and  the  master  at  the  time  was  on  shore  ;  and 
Livingston,  J.,  said, —  "  It  is  universally  understood  that  the 
pilot,  while  on  board,  has  the  absolute  and  exclusive  control 
of  the  ship ;  and  I  am  prepared  to  say,  that  if  the  master 
had  been  on  board,  he  would  not  have  been  responsible."  l 
In  the  case  of  the  ship  Massachusetts,  in  the  English  High 
Court  of  Admiralty,2  a  collision  was  occasioned  by  the  drag- 
ging of  her  anchor,  and,  in  consequence,  driving  against  the 
bows  of  the  Bulfinch  ;  the  anchor  being  too  light  to  hold  the 
ship.  It  was  held,  that  the  owners  of  the  damaging  ship 
were  not  exempted  from  responsibility  by  the  fact  of  having 
a  licensed  pilot  on  board,  at  the  time,  under  the  provisions 
of  the  statute  6  Geo.  4.  Dr.  Lushington,  in  addressing 
Trinity  Masters,  said,  —  "If  you  are  of  opinion,  that  the 
accident  arose  partly  from  the  fault  of  the  pilot  in  not  com- 
ing to  an  anchor  in  sufficient  time,  and  partly  from  the  de- 
fective weight  of  the  anchor  ;  the  legal  consequence  is, 
that  the  damage  having  arisen  from  the  joint  default  of  the 
pilot  and  the  owners,  the  responsibility  of  the  loss  must  fall 
upon  the  owners  of  the  ship."  That  is,  although,  by  the 
aforesaid  statute,  the  owners  are  exempted  from  responsi- 
bility in  case  of  accidents,  when  there  is  a  licensed  pilot  on 
board,  they  would  not  be,  even  by  the  force  of  the  statute, 
if  the  accident  was  owing,  in  any  degree,  to  the  fault  of  the 
master.3 


act  of  another  whom  he  did  not  appoint  or  employ.     Nicholson  v.  Mounsey, 
15  East,  R.  384. 

1  Snell  v.  Rich,  1  Johns.  (N.  Y.)  R.  304. 

2  The  Massachusetts,  1  W.  Rob.  R.  371. 

3  The  Girolamo,  an  Austrian  vessel,  left  the  London  Docks  with  a 
licensed  pilot  on  board,  towed  by  a  steam-vessel.     After  she  had  passed 
Blackwall,  a  fog  came  on,  during  which  she  run  foul  of  the  Edward,  a 
British  convict  ship,  moored  below  Woolwich,  in  the  proper  berth  for  such 
vessels.     Sir  John  Nicholl  said  :  "  Did  the  accident  arise  from  the  neglect, 


CH.  XII.]  PASSENGER  CARRIERS — BY  WATER.  667 

§  665.  When  a  collision  occurs  in  the  port  of  a  foreign 
country,  the  rights  and  responsibilities  will  depend  on  the 
laws  of  that  country  as  interpreted  by  its  judicial  tribunals. 
By  some  of  the  English  pilotage  statutes,  (6  Geo.  4,  c.  125,) 
neither  the  master  nor  the  owner  of  a  vessel  is  answerable 
for  damage  occasioned  entirely  by  the  fault  of  the  pilot ; 1 
and  in  case  of  a  collision  between  two  American  vessels  in 
an  English  port,  the  rights  of  the  parties,  it  has  been  held, 
will  depend,  in  a  suit  in  this  country,  upon  the  provisions  of 
these  statutes.  It  was  so  determined  by  the  Supreme  Court 
of  the  United  States,  in  Smith  v.  Condry,2  in  which  Taney, 
C.  J.,  in  giving  the  opinion  of  the  Court,  says :  —  "  The 
collision  having  taken  place  in  the  port  of  Liverpool,  the 
rights  of  the  parties  depend  upon  the  provisions  of  the  British 
statutes,  then  in  force  ;  and  if  doubts  exist  as  to  their  true 
construction,  we  must  of  course  adopt  that  which  is  sanc- 


default,  or  incapacity  (the  words  of  the  act  6  Geo.  4,)  of  the  pilot  ?  or  was 
the  master  in  part  delicto  ?  It  occurred  from  the  vessel  going  on  in  the 
fog,  not  from  the  want  of  bad  steerage,  want  of  knowledge  of  shoals,  or 
any  incapacity  as  pilot,  but  from  proceeding  at  all.  It  seems  to  be  nearly 
admitted,  that  if  the  vessel  had  set  off  in  this  fog,  blame  would  have  been 
imputable  to  the  master ;  if  so,  was  he  not  blamable  in  going  on  in  the 
fog  ]  Had  he  not  a  right  to  resume  his  authority  ?  Did  he  not  owe  it  to 
his  owners  and  to  other  persons,  whose  property  might  be  damaged  by  col- 
lision, to  insist  on  bringing  the  vessel  up?  Was  not  the  master  in  duty 
bound  at  least  to  remonstrate  with  the  pilot,  and  to  represent  the  danger 
of  proceeding  ?  Yet  he  says  in  his  affidavit,  '  he  did  not  in  the  least  in- 
terfere.' In  this  aspect,  the  case  is,  as  far  as  I  am  aware,  new,  and  one  of 
too  much  difficulty  to  arrive  at  any  hasty  decision  upon,  unless  there  be  no 
other  points  upon  which  the  case  may  be  disposed  of."  3  Hagg.  R.  176, 
and  Abbott  on  Shipp.  (5th  Am.  ed.)  300,  n.  (b.) 

1  Carruthers  v.  Sydebotham,  4  M.  &  Sel.  R.  77. 

2  Smith  v.  Condry,  1  How.  (U.  S.)  R.  28.     It  appears  by  the  case  of 
the  Vernon,  that  the  provisions  of  6  Geo.  4,  equally  apply  in  cases  where 
the  damage  is  done  by  a  British  ship  to  the  property  of  foreigners,  as  in 
cases  entirely  between  British  subjects,  upon  the  principle,  that  when  a 
remedy  is  sought  to  be  obtained,  the  party  seeking  it  must  take  it  accord- 
ing to  the  law  of  the  country  in  which  it  is  to  be  enforced.     The  Vernon, 
1  W.  Rob.  R.  316. 


668  LAW    OP   CARRIERS.  [CH.  XII. 

tioned  by  their  own  Courts."  The  leading  principle  of  the 
legislature,  in  England,  in  exonerating  owners  of  vessels 
from  any  damage  occasioned  by  their  vessels  having  pilots 
on  board,  is,  that  the  masters  are  compellable  to  take  such 
pilots  on  board,  and  the  owners  are  not  responsible  for  the 
acts  of  persons  to  whom  they  are  thus  forced  to  commit  the 
management  of  their  property,  and  over  whom  they  have 
no  control.1  It  may  be  inferred,  says  Lord  Tenterden,  from 
two  cases  considered  together,  which  were  cited  with  respect 
to  a  Liverpool  pilot — one  in  the  Court  of  King's  Bench,2 
and  the  other  in  the  Court  of  Exchequer3  —  that  where  the 
master  is  bound  by  an  act  of  Parliament,  under  a  penalty,  to 
place  his  ship  in  charge  of  a  pilot,  and  does  so  accordingly, 
the  ship  is  not  to  be  considered  as  under  the  management  of 
the  owners,  or  their  servants  ;  but  when  it  is  in  the  election 
or  discretion  of  the  master  to  take  a  pilot  or  not,  and  he 
thinks  fit  to  take  one,  the  pilot  so  taken  is  to  be  considered 
as  a  servant  of  the  owners.  Under  what  circumstances  the 
master  is  thus  bound  to  place  his  vessel  under  the  charge  of 
a  local  pilot,  must  depend  upon  the  provisions  of  the  local 
law,  by  which  the  duty  of  taking  a  pilot  is  imposed  by  the 
master.  The  master  is  not  answerable  for  the  misconduct 
or  awkwardness  of  a  person  whose  appointment  is,  by  public 
authority,  taken  out  of  his  hands.4  The  appointment  of 
pilots,  and  the  regulation  of  pilotage,  have  been  hitherto  left 
by  the  Congress  of  the  United  States  to  the  State  Legisla- 


1  The  Maria,  1  W.  Rob.  R.  95 ;  and  see  cases  cited  ante,  §  193,  n.  3. 
See  the  different  acts  of  Parliament  on  the  subject  of  pilots  and  pilotage 
compared  and  commented  on  by  Mr.  C.  J.  Taney,  in  Smith  v.  Condry, 
ub.  sup.  The  Protector,  1  W.  Rob.  R.  45.  That  the  construction  of  the 
different  pilot  acts  in  England,  has  not  been  uniform.  The  Agricola, 
2  W.  Rob.  R.  10 ;  Mackintosh  v.  Slade,  6  B.  &  Cress.  R.657. 

a  Carruthers  v.  Sydebotham,  4  M.  &  Sel.  R.  77. 

3  Attorney-General  v.  Case,  3  Price,  R.  302. 

4  Abbott  on  Shipp.  (5th  Am.  ed.)  278.     See  the  case  of  the  Fama, 
2  W.  Rob.  R.  84. 


CH.  XII.]  PASSENGER   CARRIERS  —  BY  WATER.  669 

tures  ;  and  the  act  of  Congress,  of  1789,  ch.  10,  expressly 
recognizes  qnd  confirms  the  regulations  made  on  this  subject 
by  the  State  Legislatures.1 

§  666.  In  Reeves  v.  The  Ship  Constitution,  in  the  District 
Court  of  the  United  States,  for  the  Eastern  District  of  Penn- 
sylvania, the  libellants  claimed  compensation  under  the 
following  circumstances :  The  steamboat  William  Wray, 
belonging  to  the  libellants,  was  employed  in  towing  the  ship 
Constitution,  to  which  she  was  fastened,  up  the  river  Dela- 
ware. There  was  a  licensed  pilot  on  board  the  ship,  under 
whose  directions  both  vessels  were  steered.  In  the  course  of 
the  passage,  they  came  in  contact  with  a  schooner,  sailing  on 
the  river,  by  reason  of  which  the  steamboat  sustained  con- 
siderable injury.  The  libel  was  dismissed  with  costs,  Judge 
Hopkinson  holding,  that  where  a  steamboat  is  hired  for  the 
purpose  of  towing  a  vessel  to  which  she  is  fastened,  and  both 
are  under  the  direction  of  a  licensed  pilot,  the  owner  of  the 
steamboat  is  not  entitled  to  damages  on  account  of  injury 
sustained  in  the  course  of  the  navigation,  and  not  caused  by 
undue  negligence  of  the  pilot.2 

§  667.  It  was  contended  in  Sproul  v.  Hemmingway,  in 


1  For  cases  arising  under  the  State  pilot  laws,  see  the  extensive  note  to 
p.  176,  of  6th  Ed.  of  Kent's  Comm.  It  is  the  duty  of  the  master  engaged 
in  the  foreign  trade,  says  Kent,  to  put  his  ship  under  the  charge  of  a  pilot 
both  on  his  outward  and  homeward  voyage,  when  he  is  within  the  usual 
limits  of  the  pilot's  employment.  The  pilot,  while  on  board,  has  the 
exclusive  control  of  the  ship.  He  is  considered  as  master  pro  hoc  vice, 
and  if  any  loss  or  injury  be  sustained  in  the  navigation  of  the  vessel  while 
under  the  charge  of  the  pilot,  he  is  answerable,  as  strictly  as  if  he  were 
a  common  carrier,  for  his  default,  negligence,  or  unskilfulness  ;  and  the 
owner  would  also  be  responsible  for  the  injured  party  for  the  act  of  the 
pilot,  as  being  the  act  of  his  agent.  3  Kent,  Comm.  (5th  ed.)  176.  And 
see  ante,  §  193,  note. 

a  Reeves  v.  The  Constitution,  Gilp.  (D.  C.)  R.  579. 


670  LAW   OF   CARRIERS.  [CH.  XII. 

Massachusetts,1  that  the  principle  which  holds  the  owner  of 
a  vessel  liable  for  the  acts  of  the  pilot  who  may  Jiave  charge 
of  her,  would  render  the  owner  of  a  vessel  liable  for  the 
negligence  of  the  master  of  a  steamboat  who  has  such  vessel 
in  charge  in  the  employment  of  towing-  her.  A  schooner 
called  the  Triton,  it  appeared  in  that  case,  was  lying  at 
anchor  in  the  river  Mississippi,  a  few  miles  below  New 
Orleans,  when  a  steamboat  called  the  Grampus  came  down, 
having  a  ship  lashed  on  each  side,  and  a  brig  called  the 
Burton  towed  astern  by  a  hawser  of  about  thirty  fathoms  in 
length  ;  the  steamboat,  when  thus  employed,  passed  so  near 
the  schooner  that  the  ship  on  her  larboard  side  just  cleared 
the  schooner,  and  a  collision  between  the  brig  and  the 
schooner  took  place ;  for  which  an  action  on  the  case  was 
brought  by  the  owners  of  the  schooner  against  the  owner  of 
the  brig.  The  evidence  tended  to  show,  that,  in  consequence 
of  the  bad  management  of  those  who  had  charge  of  the 
steamboat,  the  brig  in  tow,  without  any  culpable  negligence 
of  those  who  had  charge  of  her,  was  thrown  out  of  the  track 
of  the  steamboat,  and  so  caused  the  collision.  In  reference 
to  which  the  jury  were  instructed,  that  if  the  collision  took 
place  through  the  negligence,  unskilfulness,  or  misconduct  of 
those  who  had  charge  of  the  steamboat,  the  owner  of  the  brig 
was  not  liable ;  to  which  instruction  the  plaintiffs  excepted, 
the  jury  having  found  a  verdict  for  the  defendant.  The  ques- 
tion which  was  raised,  the  Court  considered,  was,  whether  the 
master  and  crew  of  the  steamboat  could  be  legally  considered 
as  the  servants  of  the  defendant.  The  Court  acknowledged 
the  difficulty  of  determining  what  facts  and  circumstances, 
in  legal  contemplation,  go  to  establish  the  relation  of  superior 
and  subordinate,  or  of  employer  and  employee,  in  such  a 
manner  as  to  give  effect  and  application  to  the  rule.  As  the 
case  of  a  vessel  towed  by  a  steamboat  was  new,  and  could 
not  have  been  anticipated  by  the  founders  of  the  Common 


Sproul  v.  Hemming  way,  14  Pick.  (Mass.)  R.  1. 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  671 

Law,  the  Court,  in  deciding  the  question,  applied  what  they 
considered  to  be  established  principles  and  analogous  cases ; 
and  had  recourse  to  the  authorities  as  reviewed  in  Steinman 
v.  Bush,1  and  Laugher  v .  Pointer.2  Tried  by  these  principles 
and  authorities,  it  was  held,  the  defendant  was  not  responsi- 
ble for  damages,  attributable  to  the  default  of  the  master  and 
crew  of  the  towing  steamboat.  "  They  were  not,"  said  Mr. 
C.  J.  Shaw,  "  the  servants  of  the  defendants  ;  were  not  ap- 
pointed by  him  ;  did  not  receive  their  wages  or  salaries  from 
him ;  the  defendant  had  no  power  to  remove  them ;  had  no 
power  to  order  or  control  them  in  their  movements  ;  had  no 
contract  with  them,  but  only  through  them,  with  the  owners 
of  the  steamboat,  for  a  participation  in  the  power  derived 
from  the  public  use  and  employment  of  that  vessel,  by  her 
owners.  After  making  such  a  contract,  it  was  perfectly  in 
the  power  of  the  owners  of  the  steamboat  to  appoint  another 
master,  pilot,  and  crew,  and  the  defendant  would  have  had 
no  cause  of  complaint."  3 


1  Steinman  v.  Rush,  1  Bos.  &  Pull.  R.  404. 

2  Laugher  v.  Pointer,  5  B.  &  Cress.  R.  547,  and  ante,  §  575. 

3  "Nor,"  said  the  learned  Judge,  (for,  on  account  of  the  importance  of 
the  question,  and  the  probability  of  its  often  arising,  we  give  the  rest  of  his 
able  opinion,)  "  can  the  master  and  crew  of  the  steamboat,  in  any  intelli- 
gible sense,  be  considered  as  in  the  employment  or  business  of  the  defend- 
ant, any  more  than  a  general  freighting  ship,  her  officers  and  crew,  can  be 
considered  as  in  the  employment  of  each  freighter  of  goods,  or  the  master 
and  crew  of  a  ferryboat,  in  the  employment  of  the  owners  of  each  coach, 
wagon,  or  team  transported  thereon.     The  steamboat  was  engaged  in  an 
open,  public,  distinct  branch  of  navigation,  that  of  towing  and  transport- 
ing vessels  up  and  down  the  Mississippi,  for  a  certain  toll  or  hire,  for  the 
profit  of  the  owners.     The  defendant  seemed  to  have  the  same  relation  to 
the  steamboat,  that  a  freighter  has  to  a  general  ship,  or  a  passenger  to  a 
packet.     The  defendant  participated  in  the  benefit  but  incidentally  and  col- 
laterally ;  he  did  not  share  in  the  profits  of  the  business,  one  which,  from 
its  magnitude,  may  well  be  called  the  trade  of  towing.     Such  a  trade  may 
be  considered  as  much  a  public  and  distinct  employment,  as  that  of  freight- 
ing or  conveying  passengers.     The  steamboat  was  in  no  sense  in  the  pos- 
session of  those  whom  she  was  employed  to  tow.     If  it  is  contended,  that 
the  defendant  is  liable  on  the  ground,  that  the  steamboat  was,  for  the  time 


672  LAW   OF   CAERIERS.  [CH.  XII. 

§  668.  But  although  the  owners  of  the  steamboat  in  the 
above  case,  were  not  liable  for  their  negligence  to  the  owner 
of  the  schooner,  they  would  have  been  liable  for  their  negli- 
gence to  the  owners  of  the  vessels  they  had  in  tow  for  any 


being,  in  his  possession,  occupation,  or  employment,  then  it  would  follow 
that  the  defendant  would  be  liable  for  the  negligence  of  the  officers  and 
crew  of  the  steamboat,  as  well  whether  the  plaintiff's  vessel  was 
struck  by  the  defendant's  vessel,  the  Burton,  as  struck  by  either  of  the 
other  vessels  towed,  or  by  the  steamboat  herself;  which  cannot  for  a 
moment  be  contended.  The  case  may  well  be  illustrated  by  considering 
the  condition  of  one  of  the  side  vessels,  firmly  lashed  to  the  steamboat, 
and  governed  wholly  by  its  movements.  The  payment  for  the  privilege  of 
being  thus  moved  or  transported,  is  precisely  like  freight  paid,  for  heavy 
luggage,  timber  or  spars,  for  instance,  carried  in  or  upon  a  ship.  The 
whole  conduct  and  management  is  entirely  under  the  control  of  the  master 
and  crew  of  the  towing  vessel  in  the  one  case,  as  it  is  of  the  freighting 
ship,  in  the  other.  If  collision  takes  place  between  the  side  ship,  thus 
firmly  lashed,  and  another  vessel,  it  is  as  directly  attributable  to  the  steam- 
boat, and  her  officers  and  crew,  as  if  the  steamboat  herself  had  come  into 
collision  with  the  other  vessel.  The  towed  ship  is  the  passive  instrument 
and  means  by  which  the  damage  is  done.  But  there  is  no  difference,  in 
this  respect,  between  the  condition  of  one  of  the  side  ships,  and  a  ship 
towed  astern,  except  this,  that  on  board  the  ship  towed  astern  by  means  of 
a  cable,  something  may  and  ought  to  be  done  by  the  master  and  crew,  in 
steering,  keeping  watch,  observing  and  obeying  orders  and  signs  ;  and  if 
there  be  any  want  of  care  and  skill  in  the  performance  of  these  duties,  and 
damage  ensue,  then  the  case  we  have  been  considering  does  not  exist ;  the 
damage  is  attributable  to  the  master  and  crew  of  the  towed  ship,  and  they 
and  their  owners  must  sustain  it.  The  jury  were  so  instructed  at  the  trial, 
and  it  was  left  to  them  to  find,  whether  the  damage  was  caused  by  the 
negligence  of  the  one  or  the  other.  Then,  supposing  all  duties  faithfully 
performed  on  board  the  towed  vessel,  and  the  damage  to  be  caused  by  the 
negligence  or  misconduct  of  the  master  and  crew  of  the  steamboat,  there 
is  no  difference  between  the  case  of  the  side  ship,  which  is  wholly  passive, 
and  the  ship  astern,  which  is  partially  so.  The  case  most  nearly  resem- 
bling this,  perhaps,  is  that  of  a  vessel  chartered,  where  for  a  certain  time 
the  whole  use  and  benefit  of  the  ship  is  transferred  to  the  charterers,  but 
the  officers  are  appointed  and  the  crew  engaged  and  subsisted  by  the  own- 
ers ;  in  which  case  it  is  held,  that  the  owners,  and  not  the  charterers,  are 
responsible  to  third  persons  for  any  damage  occasioned  by  the  negligence 
of  the  officers  and  crew.  Fletcher  v.  Braddick,  5  Bos.  &  Pul.  R.  182." 


CH.   XH.j  PASSENGER   CARRIERS  —  BY  WATER. 

injury  occasioned  to  them  in  consequence  of  it.  The  owners 
of  steamboats,  when  employed  in  their  ordinary  business  of 
transporting  goods,  are  liable  to  the  full  extent  of  common 
carriers^  l  but  whenever  they  are  employed  out  of  the  course 
of  such  their  ordinary  business,  as  in  the  instance  of  towing 
a  freight  vessel,  the  owners  are  held  to  no  more  than  ordinary 
careful  management,  and  the  law  of  common  carriers  is  not 
applicable  to  them.2  In  one  case  it  was  held,  that  the  owners 
of  a  steamboat  who  undertook,  for  hire,  to  tow  a  canal  boat 
and  her  cargo  on  the  river  Hudson,  were  absolved  from  the 
obligation  of  the  exercise  of  even  ordinary  care,  by  a  stipu- 
lation that  the  canal  boat  was  to  be  towed  at  the  risk  of  her 
master  ;  but  that  they  were  still  liable  for  negligence  so  gross, 
as  to  be  confounded  with  fraud.3  If  no  negligence  can  be 
proved  on  the  part  of  a  steamer  for  damage  occasioned  in 
such  cases,  the  owners  of  course  are  not  responsible  either  to 
the  vessel  in  tow,  or  to  the  owners  of  a  vessel  injured  by  her 
coming  in  contact  with  the  vessel  in  tow.4 

§  669.  Loss  by  collision  of  vessels,  it  must  be  perceived, 

1  Ante,  §  83. 

2  Caton  ».  Barney,  13  Wend.  (N.  Y.)  R.  387  ;  Pennsylvania,  Del.  and 
Md.  Navigation  Co.  r.  Dandridge, 8  G.  &  Johns.  (Md.)  R.  109;  andante, 
$  86.     Even  an  express  promise  to  tow  safely,  is  but  an  undertaking  to  tow 
with  ordinary  care,  and  does  not  create  the  obligation  of  a  common  carrier. 
Ante,  §  60. 

3  Alexanders.  Greene,  3  Hill,  (N.  Y.)  R.  1.    But  in  a  case  in  the  District 
Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania,  Kane,  J. 
stated  considerations  for  holding  a  steam-tug  to  the  rigid  accountability  of 
a  common  carrier,  in  opposition  to  the  case  of  Alexander  v.  Hill.     A  cap- 
tain of  a  steam-tug  is  the  pilot  of  the  voyage,  and  is  the  best  judge  of  the 
sufficiency  of  the  canal  boat  taken  in  tow,  to  resist  the  weather,  and  of  the 
adequacy  of  her  crew  to  do  what  may  be  required  for  her  protection,  and 
cannot  limit  his  responsibility  by  a  notice  given  at  the  time  of  commencing 
the  voyage,  that  it  must  be  at  the  risk  of  the  owner  of  the  canal  boat. 
The  steam-tug,  notwithstanding  such  notice,  is  bound  for  the  exercise  of 
all  that  skill  and  care  which  the  circumstances  of  the  case  demand.      \  an- 
derslice  v.  Steam  Tow-boat  Superior,  Law  Rep.  for  December,  1850,  p.  399. 

4  The  Duke  of  Sussex,  1  W.  Rob.  R.  270. 

57 


LAW   OF   CARRIERS.  [CH.  XII. 

has  been  a  difficult  subject  for  discussion  and  decision,  and 
the  evidence  as  to  the  real  cause  of  collision  is  of  difficult 
access.  The  accident  usually  happens  in  the  darkness  of 
the  night,  or  in  a  fog,  or  in  a  storm,  and  is  necessarily  accom- 
panied with  confusion  and  agitation.1  Where  the  evidence 
on  both  sides  is  conflicting  and  nicely  balanced,  Courts  of 
Admiralty  are  guided  by  the  probabilities  of  the  respective 
cases  which  are  set  up  ;  but  the  law  requires  that  there 
should  be  preponderating  evidence  to  fix  the  loss  on  the 
party  charged,  before  the  Court  can  adjudge  him  to  make 
compensation.2  A  priori,  the  presumption,  as  we  have  al- 
ready said,  is,  that  the  master  of  a  vessel  would  do  what 
was  right,  and  follow  the  correct  and  regular  course  of  the 
navigation.3 

1  3  Kent,  Comm.  230.     Miscellaneous  cases  relating  to  collision  :  The 
Freya,  5  C.  Rob.  R.  75  ;  The  Thames,  Ibid.  345  ;  The  Agricola,  2  W. 
Rob.  R.  10  ;  The  Blenheim,  10  Jur.  79  ;  Seccombe  v.  Wood,  2  Mood.  & 
Rob.  R.  290.     Of  the  effect  of  a  verdict  in  an  action  at  Law  on  a  suit  in 
the  Court  of  Admiralty,  with  respect  to  the  same  collision  :  The  Ann  & 
Mary,  2  W.  Rob.  R.  189  ;  General  Steam  Nav.  Co.  v.  Tonkin,  (The 
Friends,)  4  Moore,  R.  321.     Costs  in  causes  of  collision  :  The  Washing- 
ton, 5  Jur.  1067  ;  The  Itinerant,  2  W.  Rob.  R.  244. 

2  The  Ligo,  2  Hagg.  R.  356. 

3  The  Mary  Stewart,  2  W.  Rob.  R.  244  ;  The  Alexander  Wise,  Ib.  65. 
Where  it  is  shown  that  the  vessel  charged  as  the  wrongdoer  omitted  an 
ordinary  and  proper  measure  of  prevention,  the  burthen  is  on  her  to  show, 
that  the  collision  was  not  owing  to  her  neglect,  but  would  have  happened, 
nevertheless,  if  the  precaution  had  been  taken.     Thus,  where  the  respond- 
ents' vessel  was  intentionally  left  at  her  moorings  in  a  harbor,  to  encounter 
an  approaching  gale,  without  any  person  on  board,  and  during  the  night  she 
dragged  her  anchors,  and  run  foul  of  the  libellant's  vessel,  it  was  held  to 
he  incumbent  on  the  respondents  to  show  that  the  misfortune  was  not  at- 
tributable to  this  cause.     Clapp  v.  Young,  Dist.  Co.  in  Massachusetts, 
February,  1848,  (Law  Rep.  Ill,)  and  cited  in  Conkl.  Adm.  Juris,  and 
Pract.  303.     A  like  principle  has  been  asserted  by  the  Supreme  Court  of 
the  United  States,  with  respect  to  the  non-observance  of  the  precautions 
against  collision  enjoined  by  the  act  of  Congress  of  July  7,  1838,  ch.  191, 
(and  see  Appx.  p.  Ixxxiv.)  and  the  amendatory  of  March  3,  1843,  ch.  94, 
(and  see  Appx.  p.  Ixxxviii.)    The  10th  section  of  the  former  act  requires  the 
master  and  owners  of  every  steamboat  running  between  sunrise  and  sunset, 


CH.  XII.]  PASSENGER  CARRIERS  —  BY  WATER.  675 

§  670.  The  testimony  of  the  persons  on  board  the  respect- 
ive vessels  is  admitted  ex  necessitate  rei,  which  rule  is  consid- 
ered one  of  the  exceptions  to  the  general  rules  of  evidence 
adopted  in  Courts  of  Admiralty,  excluding  the  testimony  of 
a  witness  directly  interested  in  the  event  of  the  suit.  Upon 
this  ground,  the  crew  of  the  vessel  charged  with  committing 
the  damage,  were  admitted  as  witnesses  in  the  case  of  The 
Catherine  of  Dover,1  though,  being  sharers  in  the  profits  and 
loss  of  the  vessel,  they  would  not  swear  they  were  disinter- 
ested in  the  result.  This  exception  to  the  general  rule  of 
the  law  of  evidence  gave  occasion  to  Sir  William  Scott, 
afterwards  Lord  Stowell,  to  say,  —  that  "  the  testimony  of 
witnesses  is  apt  to  be  discolored  by  their  feelings,  and  the 
interest  which  they  take  in  the  success  of  the  cause  ;  and  the 
Court  too  frequently  has  to  decide  upon  great  diversities  of 
statement  as  to  the  courses  the  vessels  were  steering,  or  the 
quarter  from  which  the  wind  was  blowing  at  the  time  when 
the  accident  occurred."  2 

§  670  a.  With  respect  to  damages  to  be  awarded  and 
apportioned  in  cases  of  collision,  the  jury,  we  have  seen, 
when  an  action  at  law  is  brought,  may  take  an  equitable 
view  of  the  facts  and  circumstances,3  and  such  is  clearly  the 
principle  by  which  Courts  of  Admiralty  are  guided.4  A  wil- 
ful collision  will  justify  exemplary  damages ;  but  when  it  is 
the  consequence  of  the  want  of  due  care,  or  of  ignorance, 
the  damages  are  merely  compensatory.5  The  case  of  Smith 


to  carry  one  or  more  signal  lights.  In  a  case  before  the  Court,  which  was 
that  of  a  collision  between  two  steamboats  on  the  Mississippi  River,  the 
respondents'  vessel  had  omitted  this  precaution,  and  the  Court  held,  that 
this  alone  was  sufficient  to  cast  the  burthen  of  proof  to  show  that  the 
injury  done  by  their  steamer  was  not  the  consequence  of  the  omission. 
Waring  v.  Clark,  5  How.  (U.  S.)  R.  441. 

1  The  Catherine  of  Dover,  2  Hagg.  R.  145. 

2  The  Woodrop  Sims,  2  Dod.  R.  83. 

3  Ante,  §  639,  640.  4  Ante,  §  641,  642. 

5  Steamboat  Co.  v.  Whillden,  4  Harring.  (Del.)  R.  228  ;  Cummings  v. 
Spruance,  Ibid.  315. 


6T6  LAW   OF   CARRIERS.  [CH.  XII. 

v.  Cowdry,  in  the  Supreme  Court  of  the  United  States,1  de- 
cides the  important  principle,  that  the  actual  damage  sustained 
at  the  time  and  place  of  the  injury,  and  not  the  profits  which 
probably  might  have  been  realized  if  the  collision  had  not 
occurred,  constitutes  the  just  measure  of  damages  to  be 
awarded  to  the  injured  party. 

§  671.  We  conclude  the  perplexed  subject  of  liability  for 
damage  occasioned  by  collision  of  vessels,  by  warning  ship 
owners,  that  it  is  important  for  them  to  bear  in  mind,  that 
in  case  of  collision,  they  will  not  be  absolved  from  the  duty 
of  rendering  every  assistance  in  their  power  to  the  ship  which 
has  been  in  error,  for  the  safety  of  her  cargo  and  her  passen- 
gers. It  is  held,  indeed,  in  the  Admiralty,  to  be  a  suspicious 
circumstance  when  effort  has  not  been  made  to  help  the  dam- 
aged vessel ;  and  the  owners  of  the  Celt,  though  not  other- 
wise in  fault,  were  condemned  in  all  costs  and  expenses  of 
the  suit,  because  the  master  made  no  attempt  to  save  the  ship 
run  down.2 


1  Smith  v.  Cowdry,  1  How.  (U.  S.)  R.  28.     That  the  probable  profits 
of  the  voyage  are  not  the  fit  mode  of  ascertaining  the  damages,  in  cases 
of  marine  torts,  The  La  Armistead  de  Ruess,  5  Wheat.  (U.  S.)  R.  385. 
The  statute  of  53  Geo.  3,  c.  159,  was  passed  to  limit  the  responsibility  of 
ship  owners  in  case  of  loss  or  damage  from  collision  or  other  accident ;  the 
word  "  ship  "  occurs  throughout  the  statute ;  in  section  1,  it  is  alone ;  in  the 
following  sections,  the  expression  "  value  of  the  ship  and  her  appurte- 
nances," occurs  not  less  than  ten  times.     In  a  case  of  collision  the  Dundee 
was  at  the  time  sailing  on  a  voyage  to  the  Greenland  fishery,  having  on 
board  the  necessary  stores  and  implements  for  the  taking  of  whales  and 
other  fish,  and  procuring  and  bringing  home  in  casks  the  oil  and  blubber,  a 
question  arose  whether  section  1  of  the  statute  was  to  be  construed  as  if  the 
words  "  with  all  appurtenances  "  had  been  inserted  in  that  clause  ;  and 
it  was  held  that  it  should  be  so  construed,  and  that  whatever  was  on  board 
of  the  ship  for  the  object  of  the  voyage  and  adventure  on  which  she  was 
engaged,  belonging  to  the  owner,  constituted  a  part  of  the  ship  and  her 
appurtenances  within  the  meaning  of  that  statute,  and  that  the  owner 
was  liable  to  the  extent  of  the  value  thereof  for  damage  done  to  another 
vessel  in  the  manner  described  by  the  act.     Gale  v,  Laurie,  5  B.  &  Cress. 
R.  156. 

2  The  Celt,  3  Hagg.  R.  321. 


APPENDIX 


APPENDIX. 


SELECT  ADJUDGED  CASES. 

COGGS  v.  BERNARD,  (2  Ld.  Raym.  R.  909.) 
[2  Annce  Reyinw.] 

IN  an  action  upon  the  case,  the  plaintiff  declared,  quod  cum, 
Bernard,  the  defendant,  the  10th  of  November,  13  Will.  III.,  at, 
&c.,  assumpsisset,  salvo  et  secure  elevare,  Anglice,  to  take  up 
several  hogsheads  of  brandy,  then  in  a  certain  cellar  in  D.  et  salvo 
et  secure  deponere,  Anglice,  to  lay  them  down  again,  in  a  certain 
other  cellar  in  Water  lane,  the  said  defendant  and  his  servants  and 
agents,  tarn  negligenter  et  improvide,  put  them  down  again  into  the 
said  other  cellar,  quod  per  defectum  curcz,  ipsius,  the  defendant,  his 
servants  and  agents,  one  of  the  casks  was  staved,  and  a  great  quan- 
tity of  brandy,  viz.  so  many  gallons  of  brandy  was  spilt.  After 
not  guilty  pleaded,  and  a  verdict  for  the  plaintiff,  there  was  a  mo- 
tion in  arrest  of  judgment,  for  that  it  was  not  alleged  in  the 
declaration  that  the  defendant  was  a  common  porter,  nor  averred 
that  he  had  any  thing  for  his  pains.  And  the  case  being  thought 
to  be  a  case  of  great  consequence,  it  was  this  day  argued  seriatim 
by  the  whole  Court. 

Gould,  Justice.  I  think  this  is  a  good  declaration.  The  objec- 
tion that  has  been  made  is,  because  there  is  not  any  consideration 
laid.  But  I  think  it  is  good  either  way,  and  that  any  man,  that 
undertakes  to  carry  goods,  is  liable  to  an  action,  be  he  a  com- 
mon carrier,  or  whatever  he  is,  if  through  his  neglect  they  are  lost, 
or  come  to  any  damage ;  and  if  a  premium  be  laid  to  be  given, 
then  it  is  without  question  so.  The  reason  of  the  action  is,  the 


17  APPENDIX. 

particular  trust  reposed  in  the  defendant,  to  which  he  has  concur- 
red by  his  assumption,  and  in  the  executing  which  he  has  miscar- 
ried by  his  neglect.  But  if  a  man  undertakes  to  build  a  house, 
without  any  thing  to  be  had  for  his  pains,  an  action  will  not  lie  for 
non-performance,  because  it  is  nudum  pactum.  So  is  the  3  Hen.  VI. 
36.  So  if  goods  are  deposited  with  a  friend,  and  are  stolen  from 
him,  no  action  will  lie.  29  Ass.  28.  But  there  will  be  a  difference 
in  that  case  upon  the  evidence,  how  the  matter  appears  ;  if  they 
were  stolen  by  reason  of  a  gross  neglect  in  the  bailee,  the  trust 
will  not  save  him  from  an  action,  otherwise  if  there  be  no  gross 
neglect.  So  is  Doct.  &  Stud.  129,  upon  that  difference.  The 
same  difference  is  where  he  comes  to  goods  by  finding.  Doct.  & 
Stud,  ubi  supra,  Ow.  141.  But  if  a  man  takes  upon  him  expressly 
to  do  such  a  fact  safely  and  securely,  if  the  thing  comes  to  any 
damage  by  his  miscarriage,  an  action  will  lie  against  him.  If  it  be 
only  a  general  bailment,  the  bailee  will  not  be  chargeable  without 
a  gross  neglect.  So  is  Keilw.  160  ;  2  Hen.  VII.  11  ;  22  Ass.  41  ; 
1  R.  10  ;  Bro.  action  sur  le  case,  78.  Southcote's  case  is  a  hard 
case  indeed,  to  oblige  all  men  that  take  goods  to  keep,  to  a  special 
acceptance,  that  they  will  keep  them  as  safe  as  they  would  do  their 
own,  which  is  a  thing  no  man  living  that  is  not  a  lawyer  could 
think  of ;  and  indeed  it  appears  by  the  report  of  that  case  in  Cro. 
El.  815,  that  it  was  adjudged  by  two  Judges  only,  viz.  Gawdy  and 
Clench.  But  in  1  Ventr.  121,  there  is  a  breach  assigned  upon  a 
bond  conditioned  to  give  a  true  account,  that  the  defendant  had 
not  accounted  for  =£30,  the  defendant  showed  that  he  locked  the 
money  up  in  his  master's  warehouse,  and  it  was  stole  from  thence, 
and  that  was  held  to  be  a  good  account.  But  when  a  man  under- 
takes specially  to  do  such  a  thing,  it  is  not  hard  to  charge  him  for 
his  neglect,  because  he  had  the  goods  committed  to  his  custody 
upon  those  terms. 

Powys  agreed  upon  the  neglect. 

Powell.  The  doubt  is,  because  it  is  not  mentioned  in  the  de- 
claration, that  the  defendant  had  any  thing  for  his  pains,  nor  that 
he  was  a  common  porter,  which  of  itself  imports  a  hire,  and  that 
he  is  to  be  paid  for  his  pains.  So  that  the  question  is,  whether  an 
action  will  lie  against  a  man  for  doing  the  office  of  a  friend,  when 
there  is  not  any  particular  neglect  shown  ?  And  I  hold,  an  action 
will  lie,  as  this  case  is.  And  in  order  to  make  it  out,  I  shall  first 


COGGS   V.   BERNARD.  T 

show,  that  there  are  great  authorities  for  me,  and  none  against  me  ; 
and  then,  secondly,  I  shall  show  the  reason  and  gist  of  this  action  ; 
and  then,  thirdly,  I  shall  consider  Southcote's  case. 

1.  Those  authorities  in  the  Register,  110,  a,  J,  of  the  pipe  of 
wine,  and  the  cure  of  the  horse,  are  in  point,  and  there  can  be  no 
answer  given  them,  but  that  they  are  writs,  which  are  framed  short. 
But  a  writ  upon  the  case  must  mention  every  thing  that  is  material 
in  the  case,  and  nothing  is  to  be  added  to  it  in  the  count,  but  the 
time,  and  such  other  circumstances.     But  even  that  objection  is 
answered  by  Rast,  Entr.  13,  c,  where  there  is  a  declaration  so 
general.     The  year  books  are  full  in  this  point.     43  Ed.  III.  33,  a, 
there  is  no  particular  act  showed.     There  indeed  the  weight  is  laid 
more  upon  the  neglect  than  the  contract.     But  in  48  Ed.  III.  6,  and 
19  Hen.  VI.  49,  there  the  action  is  held  to  lie  upon  the  undertaking, 
and  that  without  that  it  would  not  lie  ;  and  therefore  the  undertaking 
is  held  to  be  the  matter  traversable,  and  a  writ  is  quashed  for  want 
of  laying  a  place  of  the  undertaking.     2  Hen.  VII.  11,  7  Hen.  IV. 
14,  these  cases  are  all  in  point,  and  the  action  adjudged  to  lie  upon 
the  undertaking. 

2.  Now,  to  give  the  reason  of  these  cases,  the  gist  of  these  actions 
is  the  undertaking.     The  party's  special  assumpsit  and  undertaking 
obliges  him  so  to  do  the  thing,  that  the  bailor  come  to  no  damage 
by  his  neglect.     And  the  bailee  in  this  case  shall  answer  accidents, 
as  if  the  goods  are  stolen  ;  but  not  such  accidents  and  casualties  as 
happen  by  the  act  of  God,  as  fire,  tempest,  &c.     So  it  is  1  Jones, 
179,  Palm.  548.     For  the  bailee  is  not  bound,  upon  any  undertak- 
ing against  the  act  of  God.     Justice  Jones,  in  that  case,  puts  the 
case  of  the  22  Ass.,  where  the  ferryman  overladed  the  boat.     That 
is  no  authority,  I  confess,  in  that  case,  for  the  action  there  is  founded 
upon  the  ferryman's  act,  viz.  the  overlading  the  boat.     But  it  would 
not  have  lain,  says  he,  without  that  act ;  because  the  ferryman,  not- 
withstanding his  undertaking,  was  not  bound  to  answer  for  storms. 
But  that  act  would  charge  him  without  any  undertaking,  because  it 
was  his  own  wrong  to  overlade  the  boat.     But  bailees  are  chargea- 
ble in  case  of  other  accidents,  because  they  have  a  remedy  against 
the  wrongdoers ;   as  in  case  the  goods  are  stolen  from   him,  an 
appeal  of  robbery  will  lie,  wherein  he  may  recover  the  goods, 
which  cannot  be  had  against  enemies,  in  case  they  are  plundered 
by  them ;  and  therefore  in  that  case  he  shall  not  be  answerable. 

A* 


VI  APPENDIX. 

But  it  is  objected,  that  here  is  no  consideration  to  ground  the  action 
upon.  But  as  to  this,  the  difference  is,  between  being  obliged  to  do 
the  thing,  and  answering  for  things  which  he  has  taken  into  his  cus- 
tody upon  such  an  undertaking.  An  action  indeed  will  not  lie  for 
not  doing  the  thing,  for  want  of  a  sufficient  consideration  ;  but  yet 
if  the  bailee  will  take  the  goods  into  his  custody,  he  shall  be  an- 
swerable for  them  ;  for  the  taking  the  goods  into  his  custody  is  his 
own  act.  And  this  action  is  founded  upon  the  warranty,  upon 
which  I  have  been  contented  to  trust  you  with  the  goods,  which 
without  such  a  warranty  I  would  not  have  done.  And  a  man  may 
warrant  a  thing  without  any  consideration.  And  therefore,  when  I 
have  reposed  a  trust  in  you,  upon  your  undertaking,  if  1  suffer, 
when  I  have  so  relied  upon  you,  I  shall  have  my  action.  Like  the 
case  of  the  Countess  of  Salop.  An  action  will  not  lie  against  a 
tenant  at  will  generally,  if  the  house  be  burnt  down.  But  if  the 
action  had  been  founded  upon  a  special  undertaking,  as  that,  in 
consideration,  the  lessor  would  let  him  live  in  the  house,  he  pro- 
mised to  deliver  up  the  house  to  him  again  in  as  good  repair  as  it  was 
then,  the  action  would  have  lain  upon  that  special  undertaking.  But 
there  the  action  was  laid  generally. 

3.  Southcote's  case  is  a  strong  authority,  and  the  reason  of  it 
comes  home  to  this,  because  the  general  bailment  is  there  taken  to 
be  an  undertaking  to  deliver  the  goods  at  all  events,  and  so  the 
judgment  is  founded  upon  the  undertaking.  But  I  cannot  think, 
that  a  general  bailment  is  an  undertaking  to  keep  the  goods  safely, 
at  all  events.  That  is  hard.  Coke  reports  the  case  upon  that  rea- 
son, but  makes  a  difference,  where  a  man  undertakes  specially  to 
keep  goods  as  he  will  keep  his  own.  Let  us  consider  the  reason  of 
the  case  ;  for  nothing  is  law  that  is  not  reason.  Upon  consideration 
of  the  authorities  there  cited,  I  find  no  such  difference.  In  9  Ed. 
IV.  40,  b,  there  is  such  an  opinion  by  Danby.  The  case  in  3  Hen. 
VII.  4,  was  of  a  special  bailment,  so  that  that  case  cannot  go  very 
far  in  the  matter.  6  Hen.  VII.  12,  there  is  such  an  opinion  by  the 
by.  And  this  is  all  the  foundation  of  Southcote's  case.  But  there 
are  cases  there  cited,  which  are  stronger  against  it,  as  10  Hen.  VII. 
26  ;  29  Ass.  28,  the  case  of  a  pawn.  My  Lord  Coke  would  distin- 
guish that  case  of  a  pawn  from  a  bailment,  because  the  pawnee  has 
a  special  property  in  the  pawn  ;  but  that  will  make  no  difference, 
because  he  has  a  special  property  in  the  thing  bailed  to  him  to  keep. 


COGGS  V.   BERNARD.  vii 

8  Ed.  II.  Fitzh.  detinue,  59,  the  case  of  goods  bailed  to  a  man, 
locked  up  in  a  chest,  and  stolen ;  and  for  the  reason  of  that  case, 
sure  it  would  be  hard,  that  a  man  that  takes  goods  into  his  custody 
to  keep  for  a  friend,  purely  out  of  kindness  to  his  friend,  should  be 
chargeable  at  all  events.  But  then  it  is  answered  to  that,  that  the 
bailee  might  take  them  specially.  There  are  many  lawyers  don't 
know  that  difference,  or,  however  it  may  be  with  them,  half  man- 
kind never  heard  of  it.  So,  for  these  reasons,  I  think  a  general 
bailment  is  not,  nor  cannot  be  taken  to  be,  a  special  undertaking  to 
keep  the  goods  bailed  safely  against  all  events.  But  if  a  man  does 
undertake  specially  to  keep  goods  safely,  that  is  a  warranty,  and 
will  oblige  the  bailee  to  keep  them  safely  against  perils,  where  he 
has  his  remedy  over,  but  not  against  such  where  he  has  no  remedy 
over. 

Holt,  Chief  Justice.  The  case  is  shortly  this.  This  defendant 
undertakes  to  remove  goods  from  one  cellar  to  another,  and  there 
lay  them  down  safely,  and  he  managed  them  so  negligently,  that, 
for  want  of  care  in  him,  some  of  the  goods  were  spoiled.  Upon 
not  guilty  pleaded,  there  has  been  a  verdict  for  the  plaintiff,  and 
that  upon  full  evidence,  the  cause  being  tried  before  me  at  Guild- 
hall. There  has  been  a  motion  in  arrest  of  judgment,  that  the  de- 
claration is  insufficient,  because  the  defendant  is  neither  laid  to  be 
a  common  porter,  nor  that  he  is  to  have  any  reward  for  his  labor. 
So  that  the  defendant  is  not  chargeable  by  his  trade,  and  a  private 
person  cannot  be  charged  in  an  action  without  a  reward. 

I  have  had  a  great  consideration  of  this  case,  and  because  some 
of  the  books  make  the  action  lie  upon  the  reward,  and  some  upon 
the  promise,  at  first  I  made  a  great  question,  whether  this  declara- 
tion was  good.  But  upon  consideration,  as  this  declaration  is,  I 
think  the  action  will  well  lie.  In  order  to  show  the  grounds  upon 
which  a  man  shall  be  charged  with  goods  put  into  his  custody,  I 
must  show  the  several  sorts  of  bailments.  And  there  are  six  sorts 
of  bailments.  The  first  sort  of  bailment  is,  a  bare  naked  bailment 
of  goods,  delivered  by  one  man  to  another  to  keep  for  the  use  of 
the  bailor  ;  and  this  I  call  a  depositum,  and  it  is  that  sort  of  bail- 
ment which  is  mentioned  in  Southcote's  case.  The  second  sort  is, 
when  goods  or  chattels  that  are  useful,  are  lent  to  a  friend  gratis, 
to  be  used  by  him  ;  and  this  is  called  commodatum,  because  the 
thing  is  to  be  restored  in  specie.  The  third  sort  is,  when  goods  are 


Vlll  APPENDIX. 

left  with  the  bailee  to  be  used  by  him  for  hire  ;  this  is  called  locatio 
et  conductio^  and  the  lender  is  called  locator,  and  the  borrower  con- 
ductor. The  fourth  sort  is,  when  goods  or  chattels  are  delivered  to 
another  as  a  pawn,  to  be  a  security  to  him  for  money  borrowed  of 
him  by  the  bailor  ;  and  this  is  called  in  Latin  vadium,  and  in  Eng- 
lish a  pawn  or  a  pledge.  The  fifth  sort  is,  when  goods  or  chattels 
are  delivered  to  be  carried,  or  something  is  to  be  done  about  them 
for  a  reward  to  be  paid  by  the  person  who  delivers  them  to  the 
bailee,  who  is  to  do  the  thing  about  them.  The  sixth  sort  is,  when 
there  is  a  delivery  of  goods  or  chattels  to  somebody,  who  is  to  carry 
them,  or  do  something  about  them  gratis,  without  any  reward  for 
such  his  work  or  carriage,  which  is  this  present  case.  I  mention 
these  things,  not  so  much  that  they  are  all  of  them  so  necessary  in 
order  to  maintain  the  proposition  which  is  to  be  proved,  as  to  clear 
the  reason  of  the  obligation  which  is  upon  persons  in  cases  of  trust. 
As  to  the  first  sort,  where  a  man  takes  goods  in  his  custody  to 
keep  for  the-use  of  the  bailor,  I  shall  consider,  for  what  things  such 
a  bailee  is  answerable.  He  is  not  answerable,  if  they  are  stole 
without  any  fault  in  him,  neither  will  a  common  neglect  make  him 
chargeable,  but  he  must  be  guilty  of  some  gross  neglect.  There 
is,  I  confess,  a  great  authority  against  me,  where  it  is  held,  that  a 
general  delivery  will  charge  the  bailee  to  answer  for  the  goods  if 
they  are  stolen,  unless  the  goods  are  specially  excepted,  to  keep 
them  only  as  you  will  keep  your  own.  But  my  Lord  Coke  has 
improved  the  case  in  his  report  of  it,  for  he  will  have  it,  that  there 
is  no  difference  between  a  special  acceptance  to  keep  safely,  and 
an  acceptance  generally  to  keep.  But  there  is  no  reason  nor  justice 
in  such  a  case  of  a  general  bailment,  and  where  the  bailee  is  not  to 
have  any  reward,  but  keeps  the  goods  merely  for  the  use  of  the 
bailor,  to  charge  him  without  some  default  in  him.  For  if  he  keeps 
the  goods  in  such  a  case  with  an  ordinary  care,  he  has  performed 
the  trust  reposed  in  him.  But  according  to  this  doctrine  the  bailee 
must  answer  for  the  wrongs  of  other  people,  which  he  is  not,  nor 
cannot  be,  sufficiently  armed  against.  If  the  law  be  so,  there  must 
be  some  just  and  honest  reason  for  it,  or  else  some  universal  settled 
rule  of  law,  upon  which  it  is  grounded  ;  and  therefore  it  is  incum- 
bent upon  them,  that  advance  this  doctrine,  to  show  an  undisturbed 
rule  and  practice  of  the  law  according  to  this  position.  But  to  show 
that  the  tenor  of  the  law  was  always  otherwise,  I  shall  give  a  his- 


COGGS   V.  BERNARD.  IX 

tory  of  the  authorities  in  the  books  in  this  matter,  and  by  them  show 
that  there  never  was  any  such  resolution  given  before  Southcote's 
case.  The  29  Ass.  28,  is  the  first  case  in  the  books  upon  that 
learning,  and  there  the  opinion  is,  that  the  bailee  is  not  chargeable, 
if  the  goods  are  stole.  As  for  8  Edw.  II.  Fitz.  detinue,  59,  where 
goods  were  locked  in  a  chest,  and  left  with  the  bailee,  and  the 
owner  took  away  the  key,  and  the  goods  were  stolen,  and  it  was 
held  that  the  bailee  should  not  answer  for  the  goods.  That  case 
they  say  differs,  because  the  bailor  did  not  trust  the  bailee  with 
them.  But  I  cannot  see  the  reason  of  that  difference,  nor  why  the 
bailee  should  not  be  charged  with  goods  in  a  chest,  as  well  as  with 
goods  out  of  a  chest.  For  the  bailee  has  as  little  power  over  them, 
when  they  are  out  of  a  chest,  as  to  any  benefit  he  might  have  by 
them,  as  when  they  are  in  a  chest ;  and  he  has  as  great  power  to 
defend  them  in  one  case  as  in  the  other.  The  case  of  9  Edw.  IV. 
40,  b,  was  but  a  debate  at  bar.  For  Danby  was  but  a  counsel  then, 
though  he  had  been  Chief  Justice  in  the  beginning  of  Edw.  IV., 
yet  he  was  removed,  and  restored  again  upon  the  restitution  of  Hen. 
VI.,  as  appears  by  Dugdale's  Chronica  Series.  So  that  what  he 
said  cannot  be  taken  to  be  any  authority,  for  he  spoke  only  for  his 
client ;  and  Genny  for  his  client  said  the  contrary.  The  case  in 
3  Hen.  VII.  4,  is  but  a  sudden  opinion,  and  that  but  by  half  the 
Court ;  and  yet  that  is  the  only  ground  for  this  opinion  of  my  Lord 
Coke,  which  besides  he  has  improved.  But  the  practice  has  been 
always  at  Guildhall,  to  disallow  that  to  be  a  sufficient  evidence,  to 
charge  the  bailee.  And  it  was  practised  so  before  my  time,  all 
Chief  Justice  Pemberton's  time,  and  ever  since,  against  the  opinion 
of  that  case.  When  I  read  Southcote's  case  heretofore,  I  was  not 
so  discerning  as  my  brother  Powys  tells  us  he  was,  to  disallow  that 
case  at  first,  and  came  not  to  be  of  this  opinion,  till  I  had  well  con- 
sidered and  digested  that  matter.  Though  I  must  confess  reason  is 
strong  against  the  case  to  charge  a  man  for  doing  such  a  friendly 
act  for  his  friend,  but  so  far  is  the  law  from  being  so  unreasonable, 
that  such  a  bailee  is  the  least  chargeable  for  neglect  of  any.  For 
if  he  keeps  the  goods  bailed  to  him,  but  as  he  keeps  his  own,  though 
he  keeps  his  own  but  negligently,  yet  he  is  not  chargeable  for  them, 
for  the  keeping  them  as  he  keeps  his  own,  is  an  argument  of  his 
honesty.  A  fortiori  he  shall  not  be  charged,  where  they  are  stolen 
without  any  neglect  in  him.  Agreeable  to  this  is  Bracton,  lib.  3, 


X  APPENDIX. 

c.  2,  99,  b.  J.  S.  apud  quern  res  deponitur,  re  obligator,  et  de  ea  re, 
quam  accepit,  restituenda  tenetur,  et  etiam  ad  id,  si  quid  in  re  de- 
posita  dolo  commiserit ;  culpce  autem  nomine  non  tenetur,  scilicet 
desidice  vel  negligentice,  quia  qui  negligenti  amico  rem  custodien- 
dam  tradit,  sibi,  ipsi  et  proprice  fatuitati  hoc  debet  imputare.  As 
suppose  the  bailee  is  an  idle,  careless,  drunken  fellow,  and  comes 
home  drunk,  and  leaves  all  his  doors  open,  and  by  reason  thereof 
the  goods  happen  to  be  stolen  with  his  own  ;  yet  he  shall  not  be 
charged,  because  it  is  the  bailor's  own  folly  to  trust  such  an  idle 
fellow.  So  that  this  sort  of  bailee  is  the  least  responsible  for  neg- 
lects, and  under  the  least  obligation  of  any  one,  being  bound  to  no 
other  care  of  the  bailed  goods,  than  he  takes  of  his  own.  This 
Bracton  I  have  cited  is,  I  confess,  an  old  author,  but  in  this  his  doc- 
trine is  agreeable  to  reason,  and  to  what  the  law  is  in  other  coun- 
tries. The  civil  law  is  so,  as  you  have  it  in  Justinian's  Inst.  lib.  3, 
tit.  15.  There  the  law  goes  farther,  for  there  it  is  said,  Ex  eo  solo 
tenetur,  si  quid  dolo  commiserit ;  culpce  autem  nomine,  id  est,  desidice 
ac  negligentice,  non  tenetur.  Itaque  securus  est  quiparum  diligenter 
custoditam  remfurto  amiserit,  quia  qui  negligenti  amico  rem  custo- 
diendam  tradit  non  ei,  sed  suce  facilitati  id  imputare  debet.  So 
that  a  bailee  is  not  chargeable  without  an  apparent  gross  neglect. 
And  if  there  is  such  a  gross  neglect,  it  is  looked  upon  as  an  evi- 
dence of  fraud.  Nay,  suppose  the  bailee  undertakes  safely  and 
securely  to  keep  the  goods,  in  express  words,  yet  even  that  won't 
charge  him  with  all  sorts  of  neglects.  For  if  such  a  promise  were 
put  into  writing,  it  would  not  charge  so  far,  even  then.  Hob.  34,  a 
covenant,  that  the  covenantee  shall  have,  occupy,  and  enjoy  certain 
lands,  does  not  bind  against  the  acts  of  wrongdoers.  3  Cro.  214, 
ace.  2  Cro.  425,  ace.  upon  a  promise  for  quiet  enjoyment.  And  if 
a  promise  will  not  charge  a  man  against  wrongdoers,  when  put  in 
writing,  it  is  hard  it  should  do  it  more  so,  when  spoken.  Doct.  & 
Stud.  130,  is  in  point,  that  though  a  bailee  do  promise  to  re-deliver 
goods  safely,  yet  if  he  have  nothing  for  the  keeping  of  them,  he 
will  not  be  answerable  for  the  acts  of  a  wrongdoer.  So  that  there 
is  neither  sufficient  reason  nor  authority  to  support  the  opinion  in 
Southcote's  case  ;  if  the  bailee  be  guilty  of  gross  negligence,  he 
will  be  chargeable,  but  not  for  any  ordinary  neglect.  As  to  the 
second  sort  of  bailment,  viz.  commodalum  or  lending  gratis,  the 
borrower  is  bound  to  the  strictest  care  and  diligence,  to  keep  the 


COGGS  V.  BERNARD.  XI 

goods,  so  as  to  restore  them  back  again  to  the  lender,  because  the 
bailee  has  a  benefit  by  the  use  of  them,  so  as  if  the  bailee  be  guilty 
of  the  least  neglect,  he  will  be  answerable  ;  as  if  a  man  should  lend 
another  a  horse,  to  go  westward,  or  for  a  month  ;  if  the  bailee  go 
northward,  or  keep  the  horse  above  a  month  ;  if  any  accident 
happen  to  the  horse  in  the  northern  journey,  or  after  the  expiration 
of  the  month,  the  bailee  will  be  chargeable  ;  because  he  has  made 
use  of  the  horse  contrary  to  the  trust  he  was  lent  to  him  under,  and 
it  may  be  if  the  horse  had  been  used  no  otherwise  than  he  was 
lent,  that  accident  would  not  have  befallen  him.  This  is  mentioned 
in  Bracton  ubi  supra :  his  words  are,  Is  autem  cui  res  aliqua  utenda 
datur,  re  obligator,  qua  commodata  est,  sed  magna  differentia  est 
inter  mutuam  et  commodatum ;  quia  is  qui  rem  mutuam  accepit,  ad 
ipsam  restituendam  tenetur,  vel  ejus  pretium,  si  forte  incendio, 
ruina,  naufragio,  aut  latronum  vel  hostium  incursu,  consumptafuerit, 
vel  deperdita,  subtracta  vel  ablata.  Et  qui  rem  utendam  accepit, 
non  sujficit  ad  rei  custodiam,  quod  talem  diligentiam  adhibeat,  qualem 
suis  rebus  propriis  adhibere  solet,  si  alius  earn  diligentius  potuit 
custodire  ;  ad  vim  autem  majorem,  vel  casus  fortuitos  non  tenetur 
quis,  nisi  culpa  sua  intervenerit.  Ut  si  rem  sibi  commodatam  domi, 
secum  detulerit  cum  peregre  profectus  fuerit,  et  illam  incursu  hos- 
tium vel  pradonum,  vel  naufragio  amiserit  non  est  dubiumquin  ad 
rei  restitutionem  teneatur.  I  cite  this  author,  though  I  confess  he  is 
an  old  one,  because  his  opinion  is  reasonable,  and  very  much  to  my 
present  purpose,  and  there  is  no  authority  in  the  law  to  the  con- 
trary. But  if  the  bailee  put  this  horse  in  his  stable,  and  he  were 
stolen  from  thence,  the  bailee  shall  not  be  answerable  for  him. 
But  if  he  or  his  servant  leave  the  house  or  stable  doors  open,  and 
the  thieves  take  the  opportunity  of  that,  and  steal  the  horse,  he  will 
be  chargeable  ;  because  the  neglect  gave  the  thieves  the  occasion  to 
steal  the  horse.  Bracton  says,  the  bailee  must  use  the  utmost  care, 
but  yet  he  shall  not  be  chargeable,  where  there  is  such  a  force  as 
he  cannot  resist. 

As  to  the  third  sort  of  bailment,  scilicet  localio,  or  lending  for 
hire,  in  this  case  the  bailee  is  also  bound  to  take  the  utmost  care 
and  to  return  the  goods,  when  the  time  of  the  hiring  is  expired. 
And  here  again  I  must  recur  to  my  old  author,  fol.  62,  b.  Qui 
pro  usu  vestimentorum  auri  vel  argenti,  vel  alterius  ornamenti,  vel 
jumenti,  mercedem  dederit  vel  promiserit,  talis  ab  eo  desideratur 


Xii  APPENDIX. 

custodia  ;  qualem  diligentissimus  paterfamilias  suis  rebus  adhibet, 
quam  si  pr&stiterit,  et  rem  aliquo  casu  amiserit,  ad  rem  reslituen- 
dam  non  tenebilitr.  Nee  sufficit  aliquem  talem  diligentiam  adhibere, 
qualem  suis  rebus  propriis  adhiberet,  nisi  talem  adhibuerit,  de  qua 
superius  dictum  est.  From  whence  it  appears,  that  if  goods  are  let 
out  for  a  reward,  the  hirer  is  bound  to  the  utmost  diligence,  such  as 
the  most  diligent  father  of  a  family  uses  ;  and  if  he  uses  that,  he 
shall  be  discharged.  But  every  man,  how  diligent  soever  he  be, 
being  liable  to  the  accident  of  robbers,  though  a  diligent  man  is  not 
so  liable  as  a  careless  man,  the  bailee  shall  not  be  answerable  in 
this  case,  if  the  goods  are  stolen. 

As  to  the  fourth  sort  of  bailment,  viz.  vadium,  or  a  pawn,  in  this 
I  shall  consider  two  things  ;  first,  what  property  the  pawnee  has  in 
the  pawn  or  pledge,  and  secondly,  for  what  neglects  he  shall  make 
satisfaction.  As  to  the  first,  he  has  a  special  property,  for  the  pawn 
is  a  securing  to  the  pawnee,  that  he  shall  be  repaid  his  debt,  and  to 
compel  the  pawner  to  pay  him.  But  if  the  pawn  be  such  as  it  will 
be  the  worse  for  using,  the  pawnee  cannot  use  it,  as  clothes,  &c., 
but  if  it  be  such,  as  will  be  never  the  worse,  as  if  jewels  for  the 
purpose  were  pawned  to  a  lady,  she  might  use  them.  But  then  she 
must  do  it  at  her  peril,  for  whereas,  if  she  keeps  them  locked  up  in 
her  cabinet,  if  her  cabinet  should  be  broke  open,  and  the  jewels 
taken  from  thence,  she  would  be  excused  ;  if  she  wears  them 
abroad,  and  is  there  robbed  of  them,  she  will  be  answerable.  And 
the  reason  is,  because  the  pawn  is  in  the  nature  of  a  deposit,  and 
as  such  is  not  liable  to  be  used.  And  to  this  effect  is  Ow.  123. 
But  if  the  pawn  be  of  such  a  nature,  as  the  pawnee  is  at  any  charge 
about  the  thing  pawned,  to  maintain  it,  as  a  horse,  cow,  <fec.,  then 
the  pawnee  may  use  the  horse  in  a  reasonable  manner,  or  milk  the 
cow,  &c.  in  recompense  for  the  meat.  As  to  the  second  point, 
Bracton,  99,  b,-  gives  you  the  answer.  Creditor,  qui  pignus  accepit, 
re  obligatur,  et  ad  illam  restituendam  tenetur ;  et  cum  hujusmodi 
res  in  pignus  data  sit  utriusque  gratia,  scilicet  debitoris,  quo 
magis  ei  pecunia  crederetur,  et  creditoris  quo  magis  ei  in  tute 
sit  creditum,  sufficit  ad  ejus  rei  custodiam  diligentiam  exactam 
adhibere,  quam  si  prastiterit,  et  rem  casu  amiserit,  securus  esse 
possit,  nee  impedilur  creditum  petere.  In  effect,  if  a  creditor 
takes  a  pawn,  he  is  bound  to  restore  it  upon  the  payment  of  the 
debt ;  but  yet  it  is  sufficient,  if  the  pawnee  use  true  diligence,  and 


COGGS   V.  BERNARD.  xiii 

he  will  be  indemnified  in  so  doing,  and  notwithstanding  the  loss,  yet 
he  shall  resort  to  the  pawner  for  his  debt.  Agreeable  to  this  is  29 
Ass.  28,  and  Southcote's  case  is.  But  indeed  the  reason  given  in 
Southcote's  case  is,  because  the  pawnee  has  a  special  property  49 
the  pawn.  But  that  is  not  the  reason  of  the  case  ;  and  there  is 
another  reason  given  for  it  in  the  book  of  Assize,  which  is  indeed 
the  true  reason  of  all  these  cases,  that  the  law  requires  nothing 
extraordinary  of  the  pawnee,  but  only  that  he  shall  use  an  ordinary 
care  for  restoring  the  goods.  But  indeed  if  the  money  for  which 
the  goods  were  pawned,  be  tendered  to  the  pawnee  before  they  are 
lost,  then  the  pawnee  shall  be  answerable  for  them  ;  because  the 
pawnee,  by  detaining  them  after  the  tender  of  the  money,  is  a 
wrongdoer,  and  it  is  a  wrongful  detainer  of  the  goods,  and  the 
special  property  of  the  pawnee  is  determined.  And  a  man  that 
keeps  goods  by  wrong,  must  be  answerable  for  them  at  all  events, 
for  the  detaining  of  them  by  him  is  the  reason  of  the  loss.  Upon 
the  same  difference  as  the  law  is  in  relation  to  pawns,  it  will  be 
found  to  stand  in  relation  to  goods  found. 

As  to  the  fifth  sort  of  bailment,  viz.  a  delivery  to  carry  or  other- 
wise manage,  for  a  reward  to  be  paid  to  the  bailee,  those  cases  are 
of  two  sorts  ;  either  a  delivery  to  one  that  exercises  a  public  employ- 
ment, or  a  delivery  to  a  private  person.  First,  if  it  be  to  a  person 
of  the  first  sort,  and  he  is  to  have  a  reward,  he  is  bound  to  answer 
for  the  goods  at  all  events.  And  this  is  the  case  of  the  common 
carrier,  common  hoyman,  master  of  a  ship,  &c.,  which  case  of  a 
master  of  a  ship  was  first  adjudged  26  Car.  II.,  in  the  case  of  Mors 
v.  Slew,  Raym.  220 ;  1  Vent.  190,  238.  The  law  charges  this 
person  thus  intrusted  to  carry  goods,  against  all  events  but  acts  of 
God,  and  of  the  enemies  of  the  king.  For  though  the  force  be 
never  so  great,  as  if  an  irresistible  multitude  of  people  should  rob 
him,  nevertheless  he  is  chargeable.  And  this  is  a  politic  estab- 
lishment, contrived  by  the  policy  of  the  law,  for  the  safety  of  all 
persons,  the  necessity  of  whose  affairs  oblige  them  to  trust  these 
sorts  of  persons,  that  they  may  be  safe  in  their  ways  of  dealing  ; 
for  else  these  carriers  might  have  an  opportunity  of  undoing  all  per- 
sons that  had  any  dealings  with  them,  by  combining  with  thieves, 
&c.,  and  yet  doing  it  in  such  a  clandestine  manner,  as  would  not 
be  possible  to  be  discovered.  And  this  is  the  reason  the  law  is 
founded  upon  in  that  point.  The  second  sort  are  bailies,  factors, 

B 


Xiv  APPENDIX. 

and  such  like.  And  though  a  bailee  is  to  have  a  reward  for  his 
management,  yet  he  is  only  to  do  the  best  he  can.  And  if  he  be 
robbed,  &c.,  it  is  a  good  account.  And  the  reason  of  his  being  a 
fprvant  is  not  the  thing ;  for  he  is  at  a  distance  from  his  master, 
and  acts  at  discretion,  receiving  rents  and  selling  corn,  &c.  And 
yet  if  he  receives  his  master's  money,  and  keeps  it  locked  up 
with  a  reasonable  care,  he  shall  not  be  answerable  for  it,  though  it 
be  stolen.  But  yet  this  servant  is  not  a  domestic  servant,  nor 
under  his  master's  immediate  care.  But  the  true  reason  of  the 
case  is,  it  would  be  unreasonable  to  charge  him  with  a  trust,  far- 
ther than  the  nature  of  the  thing  puts  it  in  his  power  to  perform 
it.  But  it  is  allowed  in  the  other  cases,  by  reason  of  the  necessity 
of  the  thing.  The  same  law  of  a  factor. 

As  to  the  sixth  sort  of  bailment,  it  is  to  be  taken,  that  the  bailee 
is  to  have  no  reward  for  his  pains,  but  yet  that  by  his  ill  manage- 
ment the  goods  are  spoiled.  Secondly,  it  is  to  be  understood,  that 
there  was  a  neglect  in  the  management.  But  thirdly,  if  it  had 
appeared  that  the  mischief  happened  by  any  person  that  met  the 
cart  in  the  way,  the  bailee  had  not  been  chargeable.  As  if  a 
drunken  man  had  come  by  in  the  streets,  and  had  pierced  the  cask 
of  brandy  :  in  this  case  the  defendant  had  not  been  answerable  for 
it,  because  he  was  to  have  nothing  for  his  pains.  Then  the  bailee 
having  undertaken  to  manage  the  goods,  and  having  managed 
them  ill,  and  so  by  his  neglect  a  damage  has-  happened  to  the 
bailor,  which  is  the  case  in  question,  what  will  you  call  this  ?  In 
Bracton,  lib.  3,  100,  it  is  called  mandatum.  It  is  an  obligation, 
which  arises  ex  mandato.  It  is  what  we  call  in  English  an  acting 
by  commission.  And  if  a  man  acts  by  commission  for  another 
gratis,  and  in  the  executing  his  commission  behaves  himself  neg- 
ligently, he  is  answerable.  Vinnius,  in  his  Commentaries  upon 
Justinian,  lib.  3,  tit.  27, 684,  defines  mandatum  to  be  contractus  quo 
aliquid  gratuto  gerendum  committitur  et  accipitur.  This  under- 
taking obliges  the  undertaker  to  a  diligent  management.  Bracton, 
ubi  supra,  says,  contrahitur  etiam  obligatio  non  solum  scripto  et 
verbis,  sed  et  conscnsu,  sicut  in  contractibus  bonce  fdei  :  ut  in 
emptionibus,  venditionibus,  locationibus,  conductionibus,  societati- 
bus,  et  mandatis.  I  don't  find  this  word  in  any  other  author  of 
our  law,  besides  in  this  place  in  Bracton,  which  is  a  full  authority, 
if  it  be  not  thought  too  old.  But  it  is  supported  by  good  reason 
and  authority. 


COGGS    V.    BERNARD.  XV 

The  reasons  are,  first,  because  in  the  case,  a  neglect  is  a  deceit 
to  the  bailor.  For  when  he  intrusts  the  bailee  upon  his  under- 
taking to  be  careful,  he  has  put  a  fraud  upon  the  plaintiff  by  being 
negligent,  his  pretence  of  care  being  the  persuasion  that  induced 
the  plaintiff  to  trust  him.  And  a  breach  of  a  trust  undertaken 
voluntarily  will  be  a  good  ground  for  an  action ;  1  Roll.  Abr.  10, 
2  Hen.  VIII.  11,  a  strong  case  to  this  matter.  There  the  case  was 
an  action  against  a  man,  who  had  undertaken  to  keep  an  hundred 
sheep,  for  letting  them  be  drowned  by  his  default.  And  there  the 
reason  of  the  judgment  is  given,  because  when  the  party  has 
taken  upon  him  to  keep  the  sheep,  and  after  suffers  them  to  perish 
in  his  default;  inasmuch  as  he  has  taken  and  executed  his  bar- 
gain, and  has  them  in  his  custody,  if  after  he  does  not  look  to 
them,  an  action  lies.  For  here  is  his  own  act,  viz.  his  agreement 
and  promise,  and  that  after  broke  of  his  side,  that  shall  give  a 
sufficient  cause  of  action. 

But  secondly,  it  is  objected,  that  there  is  no  consideration  to 
ground  this  promise  upon,  and  therefore  the  undertaking  is  but 
nudum  pactum.  But  to  this  I  answer,  that  the  owner's  trusting 
him  with  the  goods  is  a  sufficient  consideration  to  oblige  him  to  a 
careful  management.  Indeed  if  the  agreement  had  been  execu- 
tory, to  carry  these  brandies  from  the  one  place  to  the  other  such 
a  day,  the  defendant  had  not  been  bound  to  carry  them.  But  this 
is  a  different  case,  for  assumpsit  does  not  only  signify  a  future 
agreement,  but  in  such  a  case  as  this,  it  signifies  an  actual  entry 
upon  the  thing,  and  taking  the  trust  upon  himself.  And  if  a  man 
will  do  that,  and  miscarries  in  the  performance  of  his  trust,  an 
action  will  lie  against  him  for  that,  though  nobody  could  have 
compelled  him  to  do  the  thing.  The  19  Hen.  VI.  49,  and  the 
other  cases  cited  by  my  brothers,  show  that  this  is  the  difference. 
But  in  the  11  Hen.  IV.  33,  this  difference  is  clearly  put,  and  that 
is  the  only  case  concerning  this  matter,  which  has  not  been  cited 
by  my  brothers.  There  the  action  was  brought  against  a  carpen- 
ter, for  that  he  had  undertaken  to  build  the  plaintiff  a  house  within 
such  a  time,  and  had  not  done  it,  and  it  was  adjudged  the  action 
would  not  lie.  But  there  the  question  was  put  to  the  Court,  what 
if  he  had  built  the  house  unskilfully,  and  it  is  agreed  in  that  case 
an  action  would  have  lain.  There  has  been  a  question  made,  if  I 
deliver  goods  to  A,  and  in  consideration  thereof  he  promise  to 


XVI  APPENDIX. 

re-deliver  them,  if  an  action  will  lie  for  not  re-delivering  them  ; 
and  in  Yelv.  4,  judgment  was  given  that  the  action  would  lie. 
But  that  judgment  was  afterwards  reversed,  and  according  to  that 
reversal,  there  was  judgment  afterwards  entered  for  the  defendant 
in  the  like  case.  Yelv.  1^8.  But  those  cases  were  grumbled  at, 
and  the  reversal  of  that  judgment  in  Yelv.  4,  was  said  by  the 
Judges  to  be  a  bad  resolution,  and  the  contrary  to  that  reversal 
was  afterwards  most  solemnly  adjudged  in  2  Cro.  667,  Tr.  21  Jac. 
1,  in  the  King's  Bench,  and  that  judgment  affirmed  upon  a  writ  of 
error.  And  yet  there  is  no  benefit  to  the  defendant,  nor  no  con- 
sideration in  that  case,  but  the  having  the  money  in  his  possession, 
and  being  trusted  with  it,  and  yet  that  was  held  to  be  a  good  con- 
sideration. And  so  a  bare  being  trusted  with  another  man's  goods, 
must  be  taken  to  be  a  sufficient  consideration,  if  the  bailee  once 
enter  upon  the  trust,  and  take  the  goods  into  his  possession.  The 
declaration  in  the  case  of  Mors  v.  Slew  was  drawn  by  the  greatest 
drawer  in  England  in  that  time,  and  in  that  declaration,  as  it  was 
always  in  all  such  cases,  it  was  thought  most  prudent  to  put  in, 
that  a  reward  was  to  be  paid  for  the  carriage.  And  so  it  has  been 
usual  to  put  it  in  the  writ,  where  the  suit  is  by  original.  I  have 
said  thus  much  in  this  case,  because  it  is  of  great  consequence, 
that  the  law  should  be  settled  in  this  point,  but  I  don't  know 
whether  I  may  have  settled  it,  or  may  not  rather  have  unsettled 
it.  But  however  that  happen,  I  have  stirred  these  points,  which 
wiser  heads  in  time  may  settle.  And  judgment  was  given  for  the 
plaintiff. 


HOLLISTER  V.   NOWLEN. 


HOLLISTEB.  v.  NOWLEN. 

Supreme  Court  of  the  State  of  New  York,  May,  1838,  (19  Wend.  K.  234.) 

Stage-coach  proprietors  and  other  common  carriers  cannot  restrict  their  Common 
Law  liability  by  a  general  notice,  that  the  "  BAGGAGE  OF  PASSENGERS  is  AT  THE 
RISK  OF  THE  OWNERS." 

THIS  was  an  action  against  the  defendant  as  a  common  carrier 
for  the  loss  of  the  plaintiff's  trunk  and  contents.  A  case  was 
agreed  on  between  the  parties,  stating  the  following  facts :  The 
defendant  was  a  member  of  a  company,  the  proprietors  of  three 
daily  lines  of  stage-coaches  running  between  Canandaigua  and 
Buffalo,  one  of  which  was  called  the  Telegraph  line.  The  defend- 
ant resided  at  Avon,  and  with  his  teams  and  coaches  ran  that  part 
of  the  route  lying  between  Avon  and  Le  Roy.  East  of  Canandai- 
gua the  line  was  owned  by  other  proprietors.  The  plaintiff  resided 
at  Utica,  and  at  that  place  entered  as  a  passenger  in  the  Telegraph 
line  for  Buffalo.  His  baggage  consisted  of  a  trunk,  containing 
clothing  to  the  value  of  $116.75.  The  fare  was  duly  paid.  On 
the  20th  July,  1833,  before  daylight  in  the  morning,  the  plaintiff 
left  Avon  in  the  defendant's  coach  on  his  way  to  Buffalo.  The 
trunk  was  placed  in  the  boot  behind  the  coach,  which  was  carefully 
secured  by  strong  leather  covering,  fastened  with  strong  leather 
straps,  and  buckles,  and  was  made  secure  against  any  loss  except 
by  violence.  After  proceeding  about  three  miles  it  was  discovered 
that  the  straps  confining  the  cover  of  the  boot  had  been  cut  and  the 
plaintiff's  trunk  with  its  contents  had  been  feloniously  stolen  and 
carried  off.  There  was  no  negligence  on  the  part  of  the  defendant 
or  his  servants  in  relation  to  the  trunk,  further  than  may  be  implied 
from  the  facts  above  stated.  The  plaintiff  left  the  stage,  went  back 
to  Avon  and  reported  his  loss  ;  and  the  defendant  offered  a  reward, 
and  made  all  proper  efforts  for  the  recovery  of  the  property,  but 
without  success. 

The  Telegraph  line  was  established  in  1828.     A  public  notice, 
that  baggage  sent  or  carried  in  the  Telegraph  line,  would  be  at  the 
risk  of  the  owner  thereof,  printed  on  a  large  sheet,  had  been  uni- 
«* 


XV111  APPENDIX. 

formly  kept  placarded  in  most  of  the  stage  offices  and  public 
houses  from  Albany  to  Buffalo ;  and  particularly  such  notice  had 
been  continually  affixed  up  in  the  stage-office  and  principal  public 
houses  at  Utica,  where  the  plaintiff  had  resided  for  the  last  three 
years  before  the  trunk  was  lost.  It  was  stipulated  that  should  the 
Court  be  of  opinion  that  the  plaintiff  was  entitled  to  recover,  judg- 
ment should  be  entered  in  his  favor  for  $116.75,  and  interest  from 
July  20,  1833,  besides  costs. 

This  cause  was  twice  argued ;  the  first  time  in  July  term,  1835, 
by  C.  P.  Kirkland,  for  the  plaintiff,  and  by  M.  T.  Reynolds,  for 
the  defendant ;  and  the  second  time  in  July  term,  1837,  by  C.  P. 
Kirkland,  for  the  plaintiff,  and  by  P.  Gridley  for  the  defendant. 
At  this  term  the  following  opinion  was  delivered  : 

By  the  Court,  BRONSON,  J.  Stage-coach  proprietors,  and  other 
carriers  by  land  and  water,  incur  a  very  different  responsibility  in 
relation  to  the  passenger  and  his  baggage.  For  an  injury  to  the 
passenger,  they  are  answerable  only  where  there  has  been  a  want 
of  proper  care,  diligence,  or  skill ;  but  in  relation  to  baggage  they 
are  regarded  as  insurers,  and  must  answer  for  any  loss  not  occa- 
sioned by  inevitable  accident  or  the  public  enemies.  As  the  point, 
though  made,  was  not  discussed  by  the  defendant's  counsel,  I  shall 
content  myself  with  referring  to  a  few  cases  to  prove  that  they  are 
liable  as  common  carriers,  for  the  loss  or  injury  of  the  property  of 
the  passenger.  Orange  Co.  Bank  v.  Brown,  9  Wend.  R.  85  ;  Cam- 
den  Company  v.  Burke,  13  Id.  611 ;  Brooke  v.  Pickwick,  4  Bing. 
218;  4  Esp.  R.  177  ;  2  Kent,  601.  The  fact  that  the  owner  is 
present,  or  sends  his  servant  to  look  after  the  property,  does 
not  alter  the  case.  Robinson  v.  Dunmore,  2  Bos.  &  Pull.  418. 
Chambre,  J.  said,  "  It  has  been  determined,  that  if  a  man  travel 
in  a  stage-coach  and  take  his  portmanteau  with  him,  though  he  has 
his  eye  upon  the  portmanteau,  yet  the  carrier  is  not  absolved  from 
his  responsibility,  but  will  be  liable  if  the  portmanteau  be  lost." 
The  liability  of  a  carrier  is  like  that  of  an  innkeeper ;  and  it  was 
said  in  Calye's  case,  8  Co.  63,  that  "  it  is  no  excuse  for  the  inn- 
keeper to  say  that  he  delivered  the  guest  the  key  of  the  chamber 
in  which  he  lodged,  and  that  he  left  the  door  open  ;  but  he  ought  to 
keep  the  goods  and  chattels  of  his  guest  there  in  safely."  When 
there  is  no  fraud,  the  fact  that  the  owner  accompanies  the  property 


HOLLISTER  V.   NOWLEN.  XIX 

cannot  affect  the  principle  on  which  the  carrier  is  charged  in  case 
of  loss. 

The  principal  question  in  the  cause  arises  out  of  the  notice  given 
by  the  coach  proprietors,  that  baggage  carried  by  the  Telegraph 
line  would  be  at  the  risk  of  the  owner ;  and  the  first  inquiry  is, 
whether  there  was  sufficient  evidence  to  charge  the  plaintiff  with  a 
knowledge  of  the  notice.  If  we  are  to  follow  the  current  of  modern 
English  decisions  on  this  subject,  it  cannot  be  denied  that  there  was 
evidence  to  be  left  to  a  jury,  and  upon  which  they  might  find  that 
the  plaintiff  had  seen  the  notice.  But  I  think  the  carrier,  if  he  can 
by  any  means  restrict  his  liability,  can  only  do  so  by  proving  actual 
notice  to  the  owner  of  the  property.  I  agree  to  the  rule  laid  down 
by  Best,  C.  J.,  in  Brooke  v.  Pickwick,  4  Bing.  218,  decided  in  1827, 
when  the  Courts  of  Westminster  Hall  had  commenced  retracing 
their  steps  in  relation  to  the  liability  of  carriers,  and  were  endeavor- 
ing to  get  back  on  to  the  firm  foundation  of  the  Common  Law. 
He  said:  —  "If  coach  proprietors  wish  honestly  to  limit  their 
responsibility,  they  ought  to  announce  their  terms  to  every  individ- 
ual who  applies  at  their  office,  and  at  the  same  time  to  place  in  his 
hands  a  printed  paper,  specifying  the  precise  extent  of  their  en- 
gagement. If  they  omit  to  do  this,  they  attract  customers  under 
the  confidence  inspired  by  the  extensive  liability  which  the  Common 
Law  imposes  upon  carriers,  and  then  endeavor  to  elude  that  liability 
by  some  limitation  which  they  have  not  been  at  the  pains  to  make 
known  to  the  individual  who  has  trusted  them." 

I  should  be  content  to  place  my  opinion  upon  the  single  ground, 
that  if  a  notice  can  be  of  any  avail,  it  must  be  directly  brought 
home  to  the  owner  of  the  property  ;  and  that  there  was  no  evidence 
in  this  case  which  could  properly  be  submitted  to  a  jury  to  draw  the 
inference,  that  the  plaintiff  knew  on  what  terms  the  coach  propri- 
etor intended  to  transact  his  business.  But  other  questions  have 
been  discussed  ;  and  there  is  another  case  before  the  Court,1  where 
the  Judge  at  the  Circuit  thought  the  evidence  sufficient  to  charge 
the  plaintiff  with  notice.  It  will,  therefore,  be  proper  to  consider 
the  other  questions  which  have  been  made  by  the  counsel. 

Can  a  common  carrier  restrict  his  liability  by  a  general  notice, 


1  The  case  of  Cole  r  Good\vin  and  Story,  post. 


XX  APPENDIX. 

in  any  form,  brought  home  to  the  opposite  party  ?  Without  in- 
tending to  go  much  at  large  into  this  vexed  question,  it  will  be 
necessary  to  state  some  leading  principles  relating  to  the  duties 
and  liabilities  of  the  carrier,  and  the  ground  upon  which  his  respon- 
sibility rests. 

The  rules  of  the  Common  Law  in  relation  to  common  carriers, 
are  simple,  well  defined,  and  what  is  no  less  important,  well  under- 
stood. The  carrier  is  liable  for  all  losses,  except  those  occasioned 
by  the  act  of  God  or  the  public  enemies.  He  is  regarded  as  an 
insurer  of  the  property  committed  to  his  charge,  and  neither  de- 
struction by  fire,  nor  robbery  by  armed  men,  will  discharge  him 
from  liability.  Holt,  C.  J.,  in  pronouncing  his  celebrated  judg- 
ment in  the  case  of  Coggs  v.  Bernard,  2  Ld.  Raym.  918,  said  : 
"  This  is  a  political  establishment,  contrived  by  the  policy  of  the 
law,  for  the  safety  of  all  persons,  the  necessity  of  whose  affairs 
oblige  them  to  trust  these  sorts  of  persons,  that  they  may  be  safe 
in  their  ways  of  dealing."  In  Forward  v.  Pittard,  1  T.  R.  27, 
where  the  carrier  was  held  liable  for  a  loss  by  fire,  Lord  Mansfield 
says,  that  "  to  prevent  litigation,  collusion,  and  the  necessity  of 
going  into  circumstances  impossible  to  be  unravelled,  the  law  pre- 
sumes against  the  carrier,  unless  he  shows  it  was  done  by  the 
king's  enemies,  or  by  such  act  as  could  not  happen  by  the  inter- 
vention of  man,  as  storms,  lightnings  and  tempests."  And  in 
relation  to  a  loss  by  robbery,  he  said,  "  the  true  reason  is,  for  fear 
it  may  give  room  for  collusion,  that  the  master  may  contrive  to  be 
robbed  on  purpose,  and  share  the  spoil."  The  rule  has  been  fully 
recognized  in  this  State.  Colt  v.  McMechen,  6  Johns.  R.  160  ; 
Elliot  v.  Rossell.  10  Johns.  R.  1  ;  Kemp  v.  Coughtry,  11  Johns. 
R.  107.  In  Robberts  v.  Turner,  12  Johns.  R.  232,  Spencer,  J. 
said,  the  carrier  "  is  held  responsible  as  an  insurer  of  the  goods, 
to  prevent  combinations,  chicanery  and  fraud." 

A  common  carrier  exercises  a  public  employment,  and  conse- 
quently has  public  duties  to  perform.  He  cannot,  like  the  trades- 
man or  mechanic,  receive  or  reject  a  customer  at  pleasure,  or 
charge  any  price  that  he  chooses  to  demand.  If  he  refuse  to 
receive  a  passenger  or  carry  goods  according  to  the  course  of  his 
particular  employment,  without  a  sufficient  excuse,  he  will  be 
liable  to  an  action  ;  and  he  can  only  demand  a  reasonable  com- 
pensation for  his  services  and  the  hazard  which  he  incurs.  2  Ld. 


HOLLISTER  V.   NOWLEN.  XXI 

Raym.  917;  Bac.  Abr.  Carriers,  (B.) ;  Skin.  279 ;  1  Salk.  249, 
250  ;  5  Bing.  217 ;  3  Taunt.  272,  per  Lawrence,  J. ;  2  Kent,  599  ; 
Story  on  Bailm.  328  ;  Jeremy  on  Carriers,  59. 

It  has  been  said,  that  the  carrier  is  liable  in  respeet  of  his  re- 
ward. Lane  v.  Cotton,  1  Salk.  143.  Lord  Coke  says,  "  he  hath 
his  hire,  and  thereby  implicitly  undertaketh  the  safe  delivery  of 
the  goods  delivered  to  him."  Co.  Litt.  89,  a.  The  carrier  may 
no  doubt  demand  a  reward  proportioned  to  the  services  he  renders 
and  the  risk  he  incurs ;  and  having  taken  it,  he  is  treated  as  an 
insurer,  and  bound  to  the  safe  delivery  of  the  property.  But  the 
extent  of  his  liability  does  not  depend  on  the  terms  of  his  contract ; 
it  is  declared  by  law.  His  undertaking,  when  reduced  to  form, 
does  not  differ  from  that  of  any  other  person  who  may  agree  to 
carry  goods  from  one  place  to  another  ;  and  yet,  one  who  does 
not  usually  exercise  this  public  employment,  will  incur  no  respon- 
sibility beyond  that  of  an  ordinary  bailee  for  hire  ;  he  is  not 
answerable  for  a  loss  by  any  means  against  which  he  could  not 
have  guarded  by  ordinary  diligence.  It  is  not  the  form  of  the 
contract,  but  the  policy  of  the  law,  which  determines  the  extent 
of  the  carrier's  liability.  In  Ansell  v.  Waterhouse,  2  Chit.  R.  1, 
which  was  an  action  on  the  case  against  the  proprietor  of  a  stage- 
coach for  an  injury  to  the  plaintiff's  wife,  Holroyd,  J.  said,  "  this 
action  is  founded  on  what  is  quite  collateral  to  the  contract,  if 
any  ;  and  the  terms  of  the  contract,  unless  changing  the  duty  of  a 
common  carrier,  are  in  this  case  quiet  immaterial.  The  declara- 
tion states  an  obligation  imposed  upon  him  by  the  law.  This  is  an 
action  against  a  person,  who,  by  ancient  law,  held,  as  it  were,  a 
public  office,  and  was  bound  to  the  public.  This  action  is  founded 
on  the  general  obligation  of  the  law."  In  Forward  ».  Pittard, 
1  T.  R.  27,  Lord  Mansfield  said,  "  It  appears  from  all  the  cases 
for  a  hundred  years  back,  that  there  are  events  for  which  the 
carrier  is  liable,  independent  of  his  contract.  By  the  nature  of 
his  contract,  he  is  liable  for  all  due  care  and  diligence  ;  and  for 
any  negligence,  he  is  suable  on  his  contract.  But  there  is  a  further 
degree  of  responsibility  by  the  custom  of  the  realm,  that  is,  by  the 
Common  Law  ;  a  carrier  is  in  the  nature  of  an  insurer.''''  See  also 
Hide  v.  Proprietors,  &c.,  1  Esp.  R.  36. 

The  law  in  relation  to  carriers  has,  in  some  instances,  operated 
with  severity,  and  they  have  been  charged  with  losses  against  which 


XX11  APPENDIX. 

no  degree  of  diligence  could  guard.  But  cases  of  this  description 
are  comparatively  of  rare  occurrence  ;  and  the  reason  why  they 
are  included  in  the  rule  of  the  Common  Law,  is  not  because  it  is 
fit  in  itself  that  any  man  should  answer  without  a  fault,  but  because 
there  are  no  means  of  effectually  guarding  the  public  against  impo- 
sition and  fraud,  without  making  the  rule  so  broad,  that  it  will 
sometimes  operate  harshly.  It  was  well  remarked  by  Bestx  C.  J. 
in  Riley  v.  Home,  5  Bing.  217,  that  "  when  goods  are  delivered 
to  the  carrier,  they  are  usually  no  longer  under  the  eye  of  the 
owner :  he  seldom  follows  or  sends  any  servant  with  them  to  their 
place  of  destination.  If  they  should  be  lost  or  injured  by  the 
grossest  negligence  of  the  carrier  or  his  servants,  or  stolen  by 
them,  or  by  thieves  in  collusion  with  them,  the  owner  would  be 
unable  to  prove  either  of  these  causes  of  loss.  His  witnesses  must 
be  the  carrier's  servants,  and  they,  knowing  that  they  could  not  be 
contradicted,  would  excuse  their  masters  and  themselves."  These 
remarks  lose  little  of  their  force  when  applied  to  the  case  of  pas- 
sengers in  stages,  steamboats,  and  railroad  cars.  For  although 
they  are  in  the  neighborhood  of  their  property,  it  is  neither  under 
their  eye,  nor  have  they  any  efficient  means  of  protecting  it  against 
the  consequences  of  negligence  and  fraud.  The  traveller  is  usu- 
ally among  strangers  ;  his  property  is  in  the  hands  of  men  who  are 
sometimes  selected  with  little  regard  to  their  diligence  and  fidelity  ; 
and  if  the  remedy  of  the  owner,  in  case  of  loss,  depend  on  the 
question  of  actual  negligence  or  fraud,  he  must  make  out  his  right 
to  recover  by  calling  the  very  men  whose  recklessness  or  frailty  has 
occasioned  the  injury.  It  was  remarked  by  Best,  C.  J.  in  Brooke 
v.  Pickwick,  4  Bing.  218,  that  "  though  coach  proprietors  of  the 
present  day  are  a  respectable  and  opulent  class,  many  of  the  per- 
sons employed  by  them  resemble  those  whom  the  Common  Law 
meant  to  guard  against." 

There  is  less  of  hardship  in  the  case  of  the  carrier,  than  has 
sometimes  been  supposed ;  for  while  the  law  holds  him  to  an  extra- 
ordinary degree  of  diligence,  and  treats  him  as  an  insurer  of  the 
property,  it  allows  him,  like  other  insurers,  to  demand  a  premium 
proportioned  to  the  hazards  of  his  employment.  The  rule  is 
founded  upon  a  great  principle  of  public  policy  ;  it  has  been  ap- 
proved by  many  generations  of  wise  men  ;  and  if  the  Courts  were 
now  at  liberty  to  make  instead  of  declaring  the  law,  it  may  well 


HOLLISTER  V.   NOWLEN.  XXlii 

be  questioned  whether  they  could  devise  a  system  which,  on  the 
whole,  would  operate  more  beneficially.  I  feel  the  more  confident 
in  this  remark  from  the  fact,  that  in  Great  Britain,  after  the  Courts 
had  been  perplexed  for  thirty  years  with  various  modifications  of 
the  law  in  relation  to  carriers,  and  when  they  had  wandered  too  far 
to  retrace  their  steps,  the  legislature  finally  interfered,  and  in  all  its 
most  important  features  restored  the  salutary  rule  of  the  Common 
Law. 

The  doctrine,  that  a  carrier  might  limit  his  responsibility  by  a 
general  notice  brought  home  to  the  employer,  prevailed  in  Eng- 
land for  only  a  short  period.  In  Smith  v.  Home,  8  Taunt.  144, 
Burrough,  J.  said,  "the  doctrine  of  notice  was  never  know  until 
the  case  of  Forward  v.  Pittard,  1  T.  R.  27,  which  I  argued  many 
years  ago."  That  case  was  decided  in  1785,  and  it  is  remarkable 
that  it  does  not  contain  one  word  on  the  subject  of  notice.  If 
that  question  was  in  any  form  before  the  Court,  it  is  not  mentioned 
by  the  reporter  ;  and  the  decision  was  against  the  carrier,  although 
the  loss  was  occasioned  by  fire,  without  his  default.  The  doc- 
trine was  first  recognized  in  Westminster  Hall  in  1804,  when  the 
case  of  Nicholson  v.  Willan,  5  East,  507,  was  decided.  Lord 
Ellenborough  said,  the  practice  of  making  a  "  special  acceptance  " 
had  prevailed  for  a  long  time,  and  that  there  was  "  no  case  to  be 
met  with  in  the  books,  in  which  the  right  of  a  carrier  thus  to  limit 
by  special  contract  his  own  responsibility,  has  ever  been  by  ex- 
press decision  denied."  Whatever  may  be  the  rule  where  there  is 
in  fact  a  special  contract,  the  learned  Judge  could  not  have 
intended  to  say,  that  a  carrier  had  for  a  long  time  been  allowed  to 
limit  his  liability  by  a  general  notice,  or  that  a  special  contract 
had  been  implied  from  such  a  notice  ;  for  he  refers  to  no  case  in 
support  of  the  position,  and  would  have  searched  in  vain  to  find 
one.  Only  eleven  years  before  (in  1793)  Lord  Kenyon  had  ex- 
pressly laid  down  a  different  rule  in  Hide  v.  Proprietors,  &c., 
1  Esp.  R.  36.  He  said,  "  there  is  a  difference  where  a  man  is 
chargeable  by  law  generally,  and  where  on  his  contract.  Where 
a  man  is  bound  to  any  duty  and  chargeable  to  a  certain  extent  by 
the  operation  of  law,  in  such  case  he  cannot,  by  any  act  of  Ids 
own,  discharge  himself."  And  he  put  the  case  of  common  carriers, 
and  said,  they  cannot  discharge  themselves  "  by  any  act  of  their 
own,  05  by  giving  jiotice,  for  example,  to  that  effect."  This  case 


XX17  APPENDIX. 

was  afterwards  before  the  King's  Bench,  but  on  another  point. 
1  T.  R.  389. 

The  doctrine  in  question  was  not  received  in  Westminster  Hall 
without  much  doubt ;  and  although  it  ultimately  obtained  something 
like  a  firm  footing,  many  of  the  English  Judges  have  expressed 
their  regret  that  it  was  ever  sanctioned  by  the  Courts.  Departing 
as  it  did  from  the  simplicity  and  certainty  of  the  Common  Law 
rule,  it  proved  one  of  the  most  fruitful  sources  of  legal  controversy 
which  has  existed  in  modern  times.  When  it  was  once  settled,  that 
a  carrier  might  restrict  his  liability  by  a  notice  brought  home  to  his 
employer,  a  multitude  of  questions  sprung  up  in  the  Courts  which 
no  human  foresight  could  have  anticipated.  Each  carrier  adopted 
such  a  form  of  notice  as  he  thought  best  calculated  to  shield  him- 
self from  responsibility  without  the  loss  of  employment ;  and  the 
legal  effect  of  each  particular  form  of  notice  could  only  be  settled 
by  judicial  decision.  Whether  one  who  had  given  notice  that  he 
would  not  be  answerable  for  goods  beyond  a  certain  value  unless 
specially  entered  and  paid  for,  was  liable  in  case  of  loss  to  the 
extent  of  the  value  mentioned  in  the  notice,  or  was  discharged 
altogether  ;  whether,  notwithstanding  the  notice,  he  was  liable  for 
a  loss  by  negligence,  and  if  so,  what  degree  of  negligence  would 
charge  him ;  what  should  be  sufficient  evidence  that  the  notice 
came  to  the  knowledge  of  the  employer,  whether  it  should  be  left 
to  the  jury  to  presume  that  he  saw  it  in  a  newspaper  which  he  was 
accustomed  to  read,  or  observed  it  posted  up  in  the  office  where  the 
carrier  transacted  his  business  ;  and  then,  whether  it  was  painted  in 
large  or  small  letters,  and  whether  the  owner  went  himself  or  sent 
his  servant  with  the  goods,  and  whether  the  servant  could  read  ; 
these  and  many  other  questions  were  debated  in  the  Courts,  while 
the  public  suffered  an  almost  incalculable  injury  in  consequence  of 
the  doubt  and  uncertainty  which  hung  over  this  important  branch  of 
the  law.  See  1  Bell's  Com.  474.  After  years  of  litigation,  par- 
liament interfered  in  1830,  and  relieved  both  the  Courts  and  the 
public,  by  substantially  re-asserting  the  rule  of  the  Common  Law. 
Stat.  1  Wm.  IV.  c.  68. 

Without  going  into  a  particular  examination  of  the  English  cases, 
it  is  sufficient  to  say,  that  the  question  has  generally  been  presented, 
on  a  notice  by  the  carrier  that  he  would  not  be  responsible  for  any 
loss  beyond  a  certain  sum,  unless  the  goods  were  specially  entered 


HOLLISTER  V.  NOWLEN.  XXT 

and  paid  for ;  and  the  decisions  have  for  the  most  part  only  gone 
far  enough  to  say,  that  if  the  owner  do  not  comply  with  the  notice 
by  stating  the  true  value  of  the  goods  and  having  them  properly 
entered,  the  carrier  will  be  discharged.  In  these  cases,  the  carrier 
had  not  attempted  to  exclude  all  responsibility.  But  there  are  two 
nisi  prius  decisions,  which  allow  the  carrier  to  cast  off  all  liability 
whatever.  In  Having  v.  Todd,  1  Stark.  R.  72,  the  defendant  had 
given  notice  that  he  would  not  answer  for  a  loss  by  fire,  and  such 
a  loss  having  occurred,  Lord  Ellenborough  thought  that  carriers 
might  exclude  their  liability  altogether,  and  nonsuited  the  plaintiff. 
In  Lesson  v.  Holt,  1  Stark.  R.  186,  tried  in  1816,  he  made  a  like 
decision  ;  though  he  very  justly  remarked,  that  "  if  this  action  had 
been  brought  twenty  years  ago,  the  defendant  would  have  been  lia- 
ble ;  since  by  the  Common  Laiv  a  carrier  is  liable  in  all  cases  ex- 
cept two."  We  have  here,  what  will  be  found  in  many  of  the 
cases,  a  very  distinct  admission  that  the  Courts  had  departed  from 
the  law  of  the  land,  and  allowed,  what  Jeremy's  Treatise  on  Car- 
riers, pp.  35,  36,  very  properly  terms  "  recent  innovations." 

Some  of  the  cases  which  have  arisen  under  a  general  notice 
have  proceeded  on  the  ground  of  fraud,  Baston  v.  Donovan,  4  B. 
&  Aid.  21  ;  others  on  the  notion  of  a  special  acceptance  or  special 
contract,  Nicholson  v.  Willan,  5  East,  507;  Harris  v.  Packwood, 
3  Taunt.  271 ;  while  in  some  instances  it  is  difficult  to  say  what 
general  principle  the  Court  intended  to  establish. 

So  far  as  the  cases  have  proceeded  on  the  ground  of  fraud,  and 
can  properly  be  referred  to  that  head,  they  rest  on  a  solid  founda- 
tion ;  for  the  Common  Law  abhors  fraud,  and  will  not  fail  to  over- 
throw it  in  all  the  forms,  whether  new  or  old,  in  which  it  may  be 
manifested.  As  the  carrier  incurs  a  heavy  responsibility,  he  has  a 
right  to  demand  from  the  employer  such  information  as  will  enable 
him  to  decide  on  the  proper  amount  of  compensation  for  his  ser- 
vices and  risk,  and  the  degree  of  care  which  he  ought  to  bestow 
in  discharging  his  trust ;  and  if  the  owner  gave  an  answer  which 
is  false  in  a  material  point,  the  carrier  will  be  absolved  from  the 
consequences  of  any  loss  not  occasioned  by  negligence  or  miscon- 
duct. The  case  of  Kenrig  v.  Eggleston,  Aleyn,  93,  was  decided 
in  1649.  The  plaintiff  delivered  a  box  to  the  porter  of  the  carrier, 
saying,  "  there  was  a  book  and  tobacco  in  the  box,"  when  in  truth 
it  contained  .£100  in  money,  besides.  Roll,  J.,  thought  the  carrier 
c 


XXvi  APPENDIX. 

was  nevertheless  liable,  for  a  loss  by  robbery  ;  "  but  in  respect  of 
the  intended  cheat  to  the  carrier,  he  told  the  jury  they  might  con- 
sider him  in  damages."  The  jury,  however,  found  the  whole  sum 
(abating  the  carriage)  for  the  plaintiff,  quod  durum  videbatur  cir- 
cumstantibus"  In  Gibbon  v.  Paynton,  4  Burr.  2298,  Lord  Mans- 
field said,  this  was  a  case  of  fraud,  and  he  "  should  nave  agreed 
in  opinion  with  the  circumstantibus."  In  Tyly  v.  Morrice,  Garth. 
485,  two  bags  of  money  sealed  up  were  delivered  to  the  carrier, 
saying  they  contained  <£200,  and  he  gave  a  receipt  for  the  money. 
In  truth  the  bags  contained  .£450,  and  the  carrier  having  been 
robbed,  paid  the  .£200  ;  and  in  this  action  brought  to  recover  the 
balance,  the  Chief  Justice  told  the  jury,  that  "  since  the  plaintiffs 
had  taken  this  course  to  defraud  the  carrier  of  his  reward,  they 
should  find  for  the  defendant."  And  the  same  point  was  decided 
in  another  action  against  the  same  carrier.  In  Gibbon  v.  Paynton, 
4  Burr.  2298,  .£100  in  money  was  hid  in  an  old  nail  bag,  which 
fact  the  plaintiff  concealed  from  the  carrier  ;  and  the  money  having 
been  stolen,  the  Court  held  that  this  fraud  would  discharge  the  de- 
fendant. In  the  case  of  the  Orange  Co.  Bank  v.  Brown,  9  Wen- 
dell, 85,  the  agent  of  the  plaintiffs  put  $11,000  in  bank  bills  in  his 
trunk,  and  delivered  it  to  the  captain  of  the  steamboat  as  his  baggage. 
The  Court  held  that  the  term  baggage  would  only  include  money 
for  the  expenses  of  travelling,  and  not  a  large  sum,  as  in  this  case, 
taken  for  the  mere  purpose  of  transportation  ;  and  it  was  said  that 
the  conduct  of  the  plaintiff's  agent  was  a  virtual  concealment  as  to 
the  money,  that  "  his  representation  of  his  trunk  and  the  contents 
as  baggage  was  not  a  fair  one,  and  was  calculated  to  deceive  the 
captain."  The  owner  is  not  bound  to  disclose  the  nature  or  value 
of  the  goods  ;  but  if  he  is  inquired  of  by  the  carrier,  he  must  an- 
swer truly.  Phillips  v.  Earle,  8  Pick.  182. 

Fraud  cannot,  I  think,  be  imputed  to  the  owner  from  the  mere 
fact,  that  he  delivers  goods  after  having  seen  a  general  notice  pub- 
lished by  the  carrier,  whatever  may  be  its  purport.  If  the  carrier 
wishes  to  ascertain  the  extent  of  his  risk,  he  should  inquire  at  the 
time  the  goods  are  delivered  ;  and  then  if  he  is  not  answered  truly, 
he  will  have  a  defence.  See  4  Bing.  218.  A  different  rule  practi- 
cally changes  the  burden  of  proof.  At  the  Common  Law,  it  is 
enough  that  the  owner  prove  the  undertaking  of  the  carrier,  and 
that  the  goods  did  not  reach  their  destination.  But  this  doctrine  of 


HOLLISTER  V.  NOWLEN.  XXV11 

implying  fraud  from  a  notice,  requires  him  to  go  further,  and  show 
that  he  complied  with  the  terms  of  the  advertisement.  He  may 
have  informed  the  carrier  truly  of  the  value  of  the  goods — there 
may  be  no  fraud,  but  still  he  is  required  to  prove  himself  innocent 
before  he  can  recover.  Independent  of  a  notice,  the  onus  would 
rest,  where  upon  general  principles  it  ought  to  rest,  on  him  who 
imputes  fraud  ;  and  the  carrier  could  not  discharge  himself  without 
showing  some  actual  misrepresentation  or  fraudulent  concealment. 
It  does  not  lie  on  the  employer  to  show  how  the  loss  was  occasioned, 
or  that  he  has  acted  properly  ;  but  the  law  presumes  against  the 
carrier,  until  he  proves  that  the  loss  happened  by  means  or  under 
circumstances  for  which  he  is  not  answerable.  1  T.  R.  33  ;  Mur- 
phy v.  Staton,  3  Munf.  (Va.)  239 ;  Story  on  Bailm.  338. 

But  it  is  enough  for  this  case,  that  the  question  of  fraud  can 
never  arise  under  such  a  notice  as  was  given  by  the  defendant. 
He  did  not  say  to  the  public  that  he  would  not  be  answerable  for 
baggage  beyond  a  certain  sum,  unless  the  owner  disclosed  the 
value  ;  he  said  he  would  not  be  answerable  in  any  event.  It  was, 
in  effect,  a  notice  that  he  would  not  abide  the  liabilities  which  the 
law,  upon  principles  of  public  policy,  had  attached  to  his  employ- 
ment. If  the  notice  can  aid  the  defendant  in  any  form,  it  certainly 
does  not  go  to  the  question  of  fraud. 

The  only  remaining  ground  of  argument  in  favor  of  the  carrier 
is,  that  a  special  contract  may  be  inferred  from  the  notice.  Inde- 
pendent of  the  modern  English  cases,  it  seems  never  to  have  been 
directly  adjudged  that  the  liability  of  the  carrier  can  be  restricted 
by  a  special  contract.  Noy,  (Maxims,)  92,  after  speaking  of  a 
loss  by  negligence,  says:  — "  If  a  carrier  would  refuse  to  carry 
unless  a  promise  were  made  to  him  that  he  should  not  be  charged 
with  any  such  miscarriage,  that  promise  were  void."  If  he  cannot 
stipulate  for  a  partial,  it  is  difficult  to  see  how  he  can  for  a  total 
exemption  from  liability.  In  Nicholson  v.  Willan,  5  East,  513, 
Lord  Ellenborough  found  no  direct  adjudication  in  favor  of  the 
position,  that  a  carrier  may  limit  his  responsibility  by  a  special 
contract ;  but  he  relied  on  the  fact  that  such  an  exemption  had 
never  been  "  by  express  decision  denied."  Although  this  mode  of 
reasoning  is  not  the  most  conclusive,  I  shall  not  deny  that  the  car- 
rier may  by  express  contract  restrict  his  liability ;  for  though  the 
point  has  never  been  expressly  adjudged,  it  has  often  been  assumed 


XXV111  APPENDIX  . 

as  good  law.  Aleyn,  93 ;  4  Co.  84,  note  to  Southcote's  case  ; 
4  Burr.  2301,  per  Yates,  J.  ;  1  Vent.  190,  238  ;  Peake,  N.  P.  Gas. 
150;  2  Taunt.  271  ;  1  Stark.  R.  186.  If  the  doctrine  be  well 
founded,  it  must,  I  think,  proceed  on  the  ground  that  the  person 
intrusted  with  the  grounds,  although  he  usually  exercises  that  em- 
ployment, does  not  in  the  particular  case  act  as  a  common  carrier. 
The  parties  agree  that,  in  relation  to  that  transaction,  he  shall  throw 
off  his  public  character,  and,  like  other  bailees  for  hire,  only  be 
answerable  for  negligence  or  misconduct.  If  he  act  as  a  carrier, 
it  is  difficult  to  understand  how  he  can  make  a  valid  contract  to  be 
discharged  from  a  duty  or  liability  imposed  upon  him  by  law. 

But,  conceding  that  there  may  be  a  special  contract  for  a  re- 
stricted liability,  such  a  contract  cannot,  I  think,  be  inferred  from 
a  general  notice  brought  home  to  the  employer.  The  argument 
is,  that  where  a  party  delivers  goods  to  be  carried,  after  seeing  a 
notice,  that  the  carrier  intends  to  limit  his  responsibility,  his  assent 
to  the  terms  of  the  notice  may  be  implied.  But  this  argument  en- 
tirely overlooks  a  very  important  consideration.  Notwithstanding 
the  notice,  the  owner  has  a  right  to  insist  that  the  carrier  shall 
receive  the  goods,  subject  to  all  the  responsibilities  incident  to  his 
employment.  If  the  delivery  of  goods  under  such  circumstances 
authorizes  an  implication  of  any  kind,  the  presumption  is  as  strong, 
to  say  the  least,  that  the  owner  intended  to  insist  on  his  legal  rights, 
as  it  is  that  he  was  willing  to  yield  to  the  wishes  of  the  carrier.  If 
a  coat  be  ordered  from  a  mechanic  after  he  has  given  the  customer 
notice  that  he  will  not  furnish  the  article  at  a  less  price  than  one 
hundred  dollars,  the  assent  of  the  customer  to  pay  that  sum,  though 
it  be  double  the  value,  may  perhaps  be  implied ;  but  if  the  mechanic 
had  been  under  a  legal  obligation,  not  only  to  furnish  the  coat,  but 
to  do  so  at  a  reasonable  price,  no  such  implication  could  arise. 
Now  the  carrier  is  under  a  legal  obligation  to  receive  and  convey 
the  goods  safely,  or  answer  for  the  loss.  He  has  no  right  to  pre- 
scribe any  other  terms ;  and  a  notice  can,  at  the  most,  only  amount 
to  a  proposal  for  a  special  contract,  which  requires  the  assent  of  the 
other  party.  Putting  the  matter  in  the  most  favorable  light  for  the 
carrier,  the  mere  delivery  of  goods  after  seeing  a  notice,  cannot 
warrant  a  stronger  presumption  that  the  owner  intended  to  assent  to 
a  restricted  liability  on  the  part  of  the  carrier,  than  it  does  that  he 
intended  to  insist  on  the  liabilities  imposed  by  law ;  and  a  special 


HOLLISTER  V.   NOWLEN.  XXIX 

contract  cannot  be  implied  where  there  is  such  an  equipoise  of 
probabilities. 

Making  a  notice  the  foundation  for  presuming  a  special  contract, 
is  subject  to  a  further  objection.  It  changes  the  burden  of  proof. 
Independent  of  the  notice,  it  would  be  sufficient  for  the  owner  to 
prove  the  delivery  and  loss  of  the  goods ;  and  it  would  then  lie  on 
the  carrier  to  discharge  himself  by  showing  a  special  contract  for 
a  restricted  liability.  But  giving  effect  to  the  notice,  makes  it 
necessary  for  the  owner  to  go  beyond  the  delivery  and  loss  of  the 
goods,  and  prove  that  he  did  not  assent  to  the  proposal  for  a  limited 
responsibility.  Instead  of  leaving  the  onus  of  showing  assent  on 
him  who  sets  up  that  affirmative  fact,  it  is  thrown  upon  the  other 
party,  and  he  is  required  to  prove  a  negative,  that  he  did  not  assent. 

After  all  that  has  been  or  can  be  said  in  defence  of  these  notices, 
whether  regarded  either  as  a  ground  for  presuming  fraud  or  imply- 
ing a  special  agreement,  it  is  impossible  to  disguise  the  fact,  that 
they  are  a  mere  contrivance  to  avoid  the  liability  which  the  law  has 
attached  to  the  employment  of  the  carrier.  If  the  law  is  too  rigid, 
it  should  be  modified  by  the  legislature,  and  not  by  the  Courts.  It 
has  been  admitted  over  and  over  again  by  the  most  eminent  English 
Judges,  that  the  effect  given  to  these  notices  was  a  departure  from 
the  Common  Law ;  and  they  have  often  regretted  their  inability  to 
get  back  again  to  that  firm  foundation.  The  doctrine,  that  a  carrier 
may  limit  his  responsibility  by  a  notice,  was  wholly  unknown  to  the 
Common  Law  at  the  time  of  our  Revolution.  It  has  never  been 
received  in  this,  nor,  so  far  as  I  have  observed,  in  any  of  the  other 
States.  The  point  has  been  raised,  but  not  directly  decided.  Bar- 
ney v.  Prentiss,  4  Har.  &  Johns.  R.  317  ;  Dwight  v.  Brewster, 
1  Pick.  50.  Should  it  now  be  received  among  us,  it  will  be  after  it 
has  been  tried,  condemned,  and  abandoned  in  that  country  to  which 
we  have  been  accustomed  to  look  for  light  on  questions  of  juris- 
prudence. 

The  act  of  parliament  already  mentioned,  enumerates  various 
articles  of  great  value  in  proportion  to  the  bulk,  and  others  which 
are  peculiarly  exposed  to  damage  in  transportation,  and  declares 
that  the  carrier  shall  not  be  liable  for  the  loss  or  injury  of  those 
articles  when  the  value  exceeds  ,£10,  unless  at  the  time  of  delivery 
the  owner  shall  declare  the  nature  and  value  of  the  property,  and 
pay  the  increased  charge  which  the  carrier  is  allowed  to  make  for 
c* 


XXX  APPENDIX. 

his  risk  and  care.  If  the  owner  complies  with  this  requirement, 
the  carrier  must  give  him  a  receipt  for  the  goods,  "  acknowledging 
the  same  to  have  been  insured ; "  and  if  he  refuse  to  give  the 
receipt,  he  remains  "  liable  and  responsible  as  at  the  Common 
Law."  The  provision  extends  to  the  proprietors  of  stage-coaches 
as  well  as  all  other  carriers,  and  to  property  which  may  "  accom- 
pany the  person  of  any  passenger  "  as  well  as  other  goods ;  and 
the  statute  declares  that  after  the  first  day  of  September,  1830, 
"  no  public  notice  or  declaration  heretofore  made,  or  hereafter  to 
be  made,  shall  be  deemed  or  construed  to  limit,  or  in  anywise  affect 
the  liability  at  Common  Law "  of  any  carriers ;  but  that  all  and 
every  such  carrier  shall  be  "  liable  as  at  the  Common  Law  to  an- 
swer"  for  the  loss  or  injury  of  the  property,  "  any  public  notice  or 
declaration  by  them  made  and  given  contrary  thereto,  or  in  any 
wise  limiting  such  liability,  notwithstanding."  The  only  modifica- 
tion of  the  Common  Law  rule  in  relation  to  carriers  made  by  this 
statute,  is  that  which  requires  the  owner,  without  a  special  request, 
to  disclose  the  nature  and  value  of  the  package,  when  it  contains 
articles  of  a  particular  description.  The  premium  for  care  and  risk, 
the  carrier  might  have  required  before.  In  relation  to  all  articles 
not  enumerated,  and  in  relation  to  those  also,  if  the  owner  comply 
with  the  requirements  of  the  act,  the  carrier  is  declared  liable  as  an 
insurer,  and  must  answer  "  as  at  the  Common  Law"  The  whole 
doctrine  which  had  sprung  up  under  notices,  is  cut  up  by  the  roots  ; 
and  in  such  language  as  renders  it  apparent  that  the  legislature 
deemed  it  an  innovation  on  the  law  of  the  land. 

If,  after  a  trial  of  thirty  years,  the  people  of  Great  Britain, 
whose  interest  and  pursuits  are  not  very  dissimilar  to  our  own, 
have  condemned  the  whole  doctrine  of  limiting  the  carrier's  liability 
by  a  notice ;  if  after  a  long  course  of  legal  controversy  they  have 
retraced  their  steps,  and  returned  to  the  simplicity  and  certainty  of 
the  Common  Law  rule ;  we  surely  ought  to  profit  by  their  expe- 
rience, and  should  hesitate  long  before  we  sanction  a  practice 
which  not  only  leads  to  doubt  and  uncertainty  concerning  the  rights 
and  duties  of  the  parties,  but  which  encourages  negligence,  and 
opens  a  wide  door  to  fraud. 

If  the  policy  of  the  law  in  relation  to  carriers  were  more  ques- 
tionable than  I  think  it  is,  it  would  be  the  business  of  the  legisla- 
ture, and  not  of  the  Courts,  to  apply  the  proper  remedy.  The 


HOLLISTER  V.  NOWLEN.  XXXi 

plaintiff  is  entitled  to  judgment  in   pursuance   of  the  stipulation 
contained  in  the  case. 

The  CHIEF  JUSTICE  concurred. 

CO\VEN,  J.  concurred  in  the  result,  for  the  reasons  assigned  by 
him  in  the  case  of  Cole  t>.  Goodwin  and  Story,  post . 


XXX11  APPENDIX. 


COLE  v.  GOODWIN  AND  STORY,  (commonly  cited  COLE  t>.  GOODWIN.) 

Supreme  Court  of  the  State  of  New  York,  May,  1838,  (19  Wend.  R.  251.) 
Opinion  of  the  Court  by  Co  wen,  J. 

Respecting  the  power  of  common  carriers  to  limit  their  Common  Law  liability  as  to 
the  safety  of  the  goods,  by  notice ;  and  of  their  power  by  notice  to  require  the 
owner  of  the  goods  to  state  the  nature  or  value  of  the  property. 

THIS,  like  the  preceding  case  of  Hollister  v.  Nowlen,  was  an 
action  against  coach  proprietors  for  the  loss  of  the  plaintiff's  bag- 
gage, and  the  principal  question  arose  out  of  the  notice  given  by 
the  defendants,  "  ALL  BAGGAGE  AT  THE  RISK  OF  THE  OWNER." 
The  opinion  delivered  by  Mr.  J.  BRONSON,  in  Hollister  v.  Nowlen, 
rendered  it,  he  considered,  unnecessary  for  him  to  examine  the 
principal  question,  which  is  elaborately  discussed  by  Mr.  J.  COWEN, 
as  follows  :  — 

But  the  more  effectually  to  secure  impunity  for  absolute  careless- 
ness, the  defendants  gave  notice,  that  all  baggage  was  at  the  risk 
of  the  owner.  This,  taken  literally,  is  another  mode  of  fastening 
all  the  duty  on  the  passenger,  exactly  inverting  the  obligation  im- 
posed by  law.  It  is  saying,  "  I  like  your  passage  money  and  the 
emoluments  of  my  public  employment  as  a  common  carrier  of 
passengers  and  their  baggage.  I  will  take  my  reward,  but  choose 
to  consult  my  convenience  and  safety  in  the  measure  of  responsi- 
bility." If  the  carrier  have  the  legal  power  to  restrict  any  branch 
of  his  liability,  either  by  special  contract  or  notice,  it  is  certainly 
important  to  inquire,  looking  at  the  consequences,  whether  such 
power  be  arbitrary  and  illimitable.  If  it  be,  there  is  no  end  to  this 
kind  of  encroachment ;  and  the  passenger  may  as  well  be  required 
to  risk  his  limbs  or  his  neck. 

All  must  agree  with  what  was  said  on  the  argument,  that  a  man 
may  become  a  common  carrier  or  not,  at  his  option  ;  and  that  he 
may  limit  his  office  to  the  carrying  of  persons  or  goods,  as  he 


COLE  V.  GOODWIN.  XXX111 

pleases,  and  at  such  general  prices  as  he  may  choose  to  charge. 
2  Kent's  Com.  598,  3d  ed.  But  his  office  as  a  common  carrier 
once  becoming  fixed,  and  his  line  of  travel,  subjects  of  carriage, 
and  prices  established,  it  is  much  more  questionable  whether,  in 
respect  to  passengers  or  goods  which  are  fairly  committed  to  him, 
he  can  qualify  his  public  duty.  It  is  agreed  by  all  the  books,  that 
while  he  enjoys  the  privileges  of  a  common  carrier,  there  are  cer- 
tain duties  pertaining  to  that  office,  which  he  cannot  escape  in  any 
form.  In  the  first  place,  he  is  bound  to  receive  passengers  and 
goods,  if  he  have  room,  and  carry  them  for  a  reasonable  reward, 
which  may  set  down  as  the  accustomed  reward  for  like  services. 
2  Kent's  Com.  598,  3d  ed.,  and  cases  there  cited  in  note  f. ;  per 
Mansfield,  C.  J.,  and  Lawrence,  J.  in  Harris  v.  Packwood,  3  Taunt. 
271,  272  ;  per  Best,  C.  J.  in  Riley  v.  Home,  5  Bing.  217  ;  2  Moore 
&  Payne,  331,  338,  S.  C. 

It  is  equally  well  settled  that  he  cannot,  either  capriciously  in  a 
single  instance,  nor  by  public  notice  seen  and  read  by  his  cus- 
tomer, nor  even  by  special  agreement,  exonerate  himself  from  the 
consequences  of  gross  neglect.  Per  Best,  C.  J.  in  Riley  «.  Home, 
5  Bing.  218  ;  2  Moore  &  Payne,  331,  341,  S.  C. ;  Sleat  v.  Fagg, 
5  Barn.  &  Aid.  342  ;  Wright  v.  Snell,  Id.  300 ;  Birkett  v.  Willan, 
2  Barn.  &  Aid.  356  ;  Beck  v.  Evans,  3  Camp.  267  ;  16  East, 
244,  S.  C. ;  Bodenham  v.  Bennett,  4  Price,  31 ;  Smith  v.  Home, 
8  Taunt.  144 ;  2  Moore,  18,  S.  C. ;  Newborn  v.  Just,  2  Carr.  & 
Payne,  76. 

It  is  said  in  the  Doct.  and  Student,  Dial.  2,  ch.  38,  p.  224  of 
Machall's  ed. :  "  If  he  [the  carrier]  would  per  case  refuse  to  carry 
it  unless  promise  were  made  unto  him,  that  he  shall  not  be  charged 
for  no  misdemeanor  that  should  be  in  him,  the  promise  were  void  ; 
for  it  were  against  reason  and  against  good  manners  ;  and  so  it  is  in 
all  other  cases  like."  In  Noy's  Maxims,  92,  it  is  said,  "  If  a  carrier 
would  refuse  to  carry  unless  a  promise  were  made  to  him  that  he 
shall  not  be  charged  with  any  such  miscarriage,  that  promise  is 
void."  Gross  negligence  is  in  general  a  species  of  fraud,  though  it 
may  not  be  always  so.  Story  on  Bailm.  13,  §  19  to  22.  And  an 
agreement  giving  direct  countenance  to  a  fraud  would  be  contrary 
to  public  policy.  It  is  equally  well  settled  that  a  special  agreement, 
or,  which  is  the  same  thing,  a  notice  seen  and  acted  upon  by  the 
owner  of  goods,  will  not  protect  the  carrier  against  the  conse- 


XXXIV  APPENDIX. 

quences  of  the  malfeasance  or  misfeasance  of  himself  or  his  ser- 
vants, as  if  they  convert  the  goods,  or  make  a  wrong  delivery. 
Story  on  Bailm.  365,  §  570,  and  the  cases  there  cited.  Beck  v. 
Evans,  16  East,  244.  Indeed,  all  this  would  be  so,  could  we  sup- 
pose the  carrier's  obligation  brought  down  to  that  of  a  mere  man- 
datary. 

Passing  below  gross  neglect  and  misfeasance,  the  balance  of 
opinion  in  Westminster  Hall  would  seem  to  be  that  the  liability  of 
the  carrier  may  be  dispensed  with.  Story  on  Bailm.  365,  §  571, 
and  cases  there  cited.  I  think  Low  v.  Booth,  13  Price,  329,  may 
be  set  down  as  a  direct  adjudication,  that  ordinary  neglect  may  be 
provided  against  by  the  parties. 

But  the  great  question  is,  under  what  limitations  may  the  parties 
provide  for  a  reduction  of  the  liability  ?  For  one,  I  hardly  feel 
warranted  to  interpose  a  general  denial  that  the  extraordinary  re- 
sponsibility of  the  common  carrier  may  be  taken  away  by  the  joint 
act  of  the  parties  ;  and  such  I  take  a  proper  notice  to  be  if  known 
to  the  bailor.  I  agree  that  there  is  no  adjudication  of  a  date  so 
ancient,  that  we  are  obliged  to  respect  it  as  authority,  giving  the 
common  carrier  a  right  to  take  a  fair  reward  for  the  carriage,  and 
yet  acquit  himself  of  his  obligation  as  such.  Admitting  the  doc- 
trine of  notice  to  have  that  effect,  and  to  be  as  old  as  Forward  v. 
Pittard,  1  T.  R.  27,  as  was  said  by  Burrough,  J.  in  Smith  v.  Home, 
8  Taunt.  144,  146  ;  2  Moore,  18,  22,  S.  C. ;  yet  we  are  carried 
back  no  farther  than  1785,  about  ten  years  after  the  revolution. 
And  even  so  soon  after,  we  find  the  learned  Judge  adding  :  —  "It 
cannot  but  be  lamented  that  such  notices  have  ever  been  used,  and 
recognized  as  a  protection  to  carriers,  to  divest  them  of  their  re- 
sponsibility." 2  Moore,  22.  If  he  meant  a  general  and  arbitrary 
power  of  protection,  I  think  every  one  must  concur  with  him  ;  but 
if  he  is  to  be  understood  as  speaking  to  the  extent  of  the  case 
before  him,  it  appears  to  me  that  the  notice  was  very  properly 
allowed  to  avail,  both  upon  principle  and  authority.  It  was  thus  :  — 
"  that  they  (the  carriers)  would  not  hold  themselves  accountable 
for  cash,  writings,  or  any  article  above  the  value  of  ,£5,  unless 
entered  and  paid  for  according  to  its  value,  when  delivered  to  their 
agents.  2  Moore,  19  ;  mere  briefly  8  Taunt.  144,  145.  I  am  in- 
clined to  think,  by  what  fell  from  Park,  J.  in  the  same  cause,  that 
both  he  and  Burrough,  J.,  must  have  alluded  to  the  disposition  of 


COLE  V.    GOODWIN.  XXXV 

carriers  to  extend  their  protection  by  notices  beyond  the  principle 
on  which  they  were  originally  allowed.  Park,  J.  said: — "The 
indulgence  given  to  carriers  by  limiting  their  responsibility  by  the 
notices  usually  affixed  in  their  offices,  has  occasioned  great  public 
inconvenience.  The  Courts  have  lately  been  inclined  to  restrain 
them."  2  Moore,  21,  22.  And  they  determined  that  even  this,  the 
usual  and  allowed  notice,  should  not  protect  the  defendants  against 
gross  negligence. 

To  appreciate  in  a  proper  manner  the  particular  notice  in  ques- 
tion, it  is  necessary  to  advert  briefly  to  the  relative  obligation  of 
the  carrier  and  owner.  The  former  is  an  insurer  against  loss  by 
any  event  except  the  act  of  God,  (now  holden  to  be  synonymous 
with  inevitable  accident,)  or  the  enemies  of  the  republic.  Per 
Holt,  J.  in  Coggs  v.  Bernard,  2  Ld.  Raym.  918  ;  Forward  v.  Pit- 
tard,  1  T.  R.  27,  33.  To  this  may  be  added  another  exception  ;  a 
loss  by  the  fraud,  and  perhaps  the  gross  neglect  of  the  owner  in  a 
case  where  he  owes  a  duty.  Bradley  v.  Waterhouse,  3  Car.  & 
Payne,  318 ;  Whalley  v.  Wray,  3  Esp.  N.  P.  C.  74.  It  follows, 
that  the  obligation  of  the  owner  is  like  that  of  other  persons  who 
cause  their  property  to  be  insured.  He  must  act  in  good  faith,  and 
at  least,  if  he  speak  at  all,  give  a  correct  account  of  every  circum- 
stance peculiarly  within  his  own  knowledge,  which  is  material  to 
the  risk  which  the  insurer  incurs,  according  to  the  legal  nature  of 
his  engagement.  The  case  of  Kenrig  v.  Eggleston,  Aleyn,  93,  was 
very  severe  upon  the  carrier.  The  plaintiff  delivered  a  box  to  the 
carrier's  porter,  telling  him  there  was  a  book  and  tobacco  in  it ;  in 
truth  it  contained  .£100  besides.  The  whole  was  lost,  and  the  car- 
rier held  liable  for  the  money.  "  It  was  agreed  by  the  counsel,  and 
given  in  charge  to  the  jury,  that  if  a  box  with  money  in  it  be  deliv- 
ered to  a  carrier,  he  is  bound  to  answer  for  it  if  he  be  robbed, 
although  it  was  not  told  him  what  was  in  it.  And  so  it  was  ruled 
in  one  Barcroft's  case,  as  Rolle  said,  where  a  box  of  jewels  was 
delivered  to  a  ferryman,  who,  knowing  not  what  was  in  it,  and 
being  in  a  tempest,  threw  it  overboard  into  the  sea  ;  and  resolved 
that  he  should  answer  for  it."  Rolle  finally  directed,  "  that 
although  the  plaintiffs  did  tell  him  of  some  things  in  the  box  only, 
and  not  of  the  money,  yet  he  must  answer  for  it ;  for  he  need  not 
tell  the  carrier  all  the  particulars  in  the  box.  But  it  must  come  on 
the  carrier's  part  to  make  special  acceptance"  He  left  the  question 


XXXVI 


APPENDIX. 


of  the  intended  cheat  to  the  jury  to  consider  in  damages  ;  and  they 
found  the  whole  i£100,  deducting  £3  for  carriage.  It  is  indeed  not 
surprising,  as  added  by  the  reporter,  "  quod  durum  videbatur  cir- 
cumslantibus."  The  general  principle  laid  down  in  this  case  as 
derived  from  Barcroft's,  so  far  from  having  been  ever  questioned, 
has  been  repeatedly  affirmed,  though  it  has  been  thought  to  have 
been  there  wrongly  applied,  inasmuch  as  there  was  evident  artifice 
made  use  of  to  disguise  the  fact  of  there  being  money  in  the  box. 
This  case  was  decided  in  24  Car.  I.  See  per  Best,  C.  J.  in  Riley 
v.  Home,  before  cited.  There  is  a  still  stronger  case  against  the 
carrier  cited  by  Hale  in  Morse  v.  Slue,  1  Vent.  238. 

In  the  case  of  Tyly  v.  Morrice,  11  Wm.  III.,  Garth.  485,  the 
plaintiffs'  servant  delivered  to  the  defendant's  book-keeper  .£450 
in  two  sealed  bags,  and  told  him  it  was  .£200,  which  the  book- 
keeper receipted  in  writing  as  "  two  bags  of  money  sealed  up, 
said  to  contain  .£200."  The  whole  being  lost  by  a  robbery,  the 
carrier  paid  .£200,  and  the  plaintiffs  sued  for  the  balance  on  the 
authority  of  Kenrig  v.  Eggleston.  The  Court  distinguished  the 
case,  and  confined  the  plaintiffs'  claim  to  what  had  been  paid, 
"  Because  there  was  a  particular  undertaking  by  the  carrier  for 
the  carriage  of  <£200  only,  and  his  reward  was  to  extend  no  far- 
ther than  to  that  sum,  and  it  is  the  reward  which  makes  the  carrier 
answerable  ;  and  since  the  plaintiffs  had  taken  this  course  to  de- 
fraud the  carrier  of  his  reward,  they  had  thereby  barred  themselves 
of  that  remedy  which  is  founded  on  the  reward."  The  case  of 
Fitchburne  v.  White,  5  Geo.  I.,  Feb.  16th,  1718,  is  thus  reported 
in  1  Str.  145.  "  Per  King,  Ch.  J.  If  a  box  is  delivered  generally 
to  a  carrier,  and  he  accepts  it,  he  is  answerable,  though  the  party 
did  not  tell  him  there  is  money  in  it.  But  if  the  carrier  asks, 
and  the  other  says  no,  or  if  he  accepts  it  conditionally,  provided 
there  is  no  money  it,  in  either  of  these  cases,  I  hold  the  carrier  is 
not  liable."  Aleyn,  93,  is  cited  as  authority.  The  case  of  Gibbon 
v.  Paynton,  4  Burr.  2298,  approves  of  the  general  doctrine  in 
Kenrig  v.  Eggleston,  but  thinks  it  misapplied.  I  have  noticed 
these  cases,  and  some  of  them  at  large,  as  showing,  1.  that  the 
carrier  is  liable  in  respect  to  his  reward ;  but  2.  that  to  raise  in 
the  law  a  respect  to  his  reward,  he  must  make  a  special  accept- 
ance, or  at  least  inquire  and  obtain  a  positive  representation.  It 
follows,  that  if  the  plaintiff  either  answer  untruly,  or  on  request 


COLE   V.    GOODWIN.  XXXV11 

refuse  to  make  any  reply  whatever,  the  carrier  may  say  either  that 
he  will  not  receive  the  goods,  or  that  if  he  receives  them,  it  shall 
not  be  as  a  common  carrier;  indeed,  that  he  will  not  consider 
himself  accountable  as  a  bailee  for  reward.  He  may  either  refuse 
to  receive  pay  for  the  carriage,  or  refuse  to  receive  a  premium 
beyond  a  certain  amount.  I  forbear  to  go  farther  into  the  cases, 
because  I  think  these  general  propositions  are  all  substantially 
adjudged  by  this  Court  in  the  late  case  of  the  Orange  Co.  Bank  v. 
Brown,  9  Wend.  R.  85,  114,  115. 

Then  reading  the  cases  on  this  subject,  and  especially  that  of 
Kenrig  v.  Eggleston,  and  Morse  v.  Slue,  will  any  one  say  that 
the  carrier  shall  be  liable,  where  the  owner  refuses  to  concur  in 
any  reasonable  request  on  his  side  to  avoid  imposition  ;  to  make 
every  thing  honest  and  fair  ?  Was  it  unreasonable,  then,  in  the 
carriers  to  demand,  as  in  Smith  v.  Home,  that  all  over  <£5  should, 
in  order  to  fix  the  carrier  with  loss,  be  entered  and  paid  for  accord- 
ing to  its  value  ?  What  is  this  but  demanding  what  no  one  can 
deny,  that  the  laborer  shall  be  paid  according  to  his  hire  ?  Is 
it  unreasonable  to  make  a  condition  that  the  owner  shall  be  honest  ? 
How  far  it  is  so,  let  us  see  from  another  case,  Gibbon  v.  Paynton, 
4  Burr.  2290.  The  defendants  had  properly  advertised,  that  their 
coachman  would  not  be  answerable  for  money  or  jewels  or  other 
valuable  goods,  unless  he  had  notice  that  such  were  delivered  to 
him  ;  and  it  was  probable  that  the  plaintiff  knew  of  the  notice, 
and  understood,  that  by  the  course  of  trade,  money  was  not  car- 
ried without  an  extra  premium.  Yet  the  plaintiff  delivered  to  the 
coachman  ,£100  hid  in  hay  in  an  old  nail  bag.  The  bag  and  the 
hay  were  carried  safely,  but  the  money  was  lost.  It  was  held, 
that  the  plaintiff  could  not  recover.  This  case  is  remarkable  as 
being  among  the  earliest  cases,  if  not  the  very  first  case  in  which 
the  carrier's  notice  appears.  It  was  in  Easter  Term,  9  Geo.  III. 
A.  D.  1769.  Lord  Mansfield  proceeded  entirely  independent  of 
the  notice ;  he  considered  the  plaintiff's  conduct  fraudulent, 
though  he  does  not  deny,  that  mere  silence  as  to  the  amount 
may  in  general  be  honest,  if  the  plaintiff  be  not  called  out  by  the 
carrier.  Yates,  J.  considered  the  notice  equivalent  to  a  special 
acceptance.  He  said,  "  this  was  a  special  acceptance."  Arston,  J. 
also  hinted  at  the  same  ground  ;  and  both  he  and  Lord  Mansfield 
laid  great  emphasis  on  the  principle,  that  a  carrier  is  liable  in 
respect  to  his  reward. 


XXXV111  APPENDIX. 

It  is  obvious,  that  if  the  owners  are  open  to  frauds  when  once 
the  goods  are  committed  to  the  hands  of  the  carrier,  the  latter  is 
equally  exposed  to  imposition  in  the  delivery  ;  and  while  it  is  rea- 
sonable that  he  should  demand  notice  of  what  he  is  called  upon  to 
transport,  is  it  not  equally  reasonable  that  he  should  make  other 
regulations  as  to  booking  the  goods  ?  Best,  C.  J.  in  Riley  v. 
Home,  after  mentioning  as  an  excuse  for  using  a1  printed  notice, 
that  "  It  would  be  inconvenient,  perhaps  impossible,  to  have  a 
formal  contract  made  for  the  carriage  of  every  parcel,  in  which 
the  value  of  the  parcel  should  be  specified,  as  well  as  the  price  to 
be  paid  for  the  carriage,"  proceeds,  "  But  it  would  add  very  little 
to  the  labor  of  the  book-keeper,  if  he  entered  the  value  of  each 
package,  and  gave  the  person  who  brought  it  a  written  memoran- 
dum of  such  entry,  like  the  slips  now  made  on  an  agreement  for 
a  policy  of  insurance."  I  have  yet  to  learn  that  any  thing  calcu- 
lated to  insure  an  exercise  of  good  faith  on  either  side,  or  a  full 
understanding  of  the  contract,  or  to  furnish  the  proper  evidence 
of  the  contract,  may  not  be  demanded.  I  will  add,  that  all  this 
is  due  to  the  safety  of  the  carrier,  whose  means  of  providing  even 
for  his  general  security,  as  well  as  for  that  of  the  particular  pack- 
age, may  be  materially  affected  by  temptations  to  robbery  con- 
cealed from  him  in  trunks,  boxes,  or  old  bags  of  hay,  but  perhaps 
known  to  others  through  the  treachery  of  the  owner's  servants, 
and  in  flagrant  cases,  of  the  owner  himself.  I  have  already  noticed 
in  another  connection,  the  importance  of  an  entry  to  be  transfer- 
red to  the  way-bill,  as  a  guide  for  the  carrier's  agent  at  the  point 
of  destination  and  delivery. 

Laboring  under  the  difficulty  of  making  inquiries  or  drawing  up 
special  acceptances  in  each  case,  and  knowing  that  a  silent  ac- 
ceptance on  their  part  would  open  them  to  interminable  frauds, 
carriers  resorted  to  the  notice  as  a  proper  substitute.  If  such  as  a 
carrier  has  a  right  to  give,  it  is  in  its  own  nature  and  according  to 
all  the  analogies  of  business,  when  brought  home  to  the  owner, 
and  this  must  always  be  proved,  a  proposition,  which,  if  followed 
by  the  delivery  of  the  parcel,  fastens  upon  the  transaction  the 
conditions  or  other  terms  specified.  Bignold  v.  Waterhouse, 
1  Maule  &  Selw.  255,  is  very  strongly  illustrative  of  this  position. 
The  defendants  have  given  the  usual  notice,  that  value  above  £5 
must  be  entered  and  paid  for.  That  not  being  done,  Lord  Ellen- 


COLE  V.   GOODWIN. 


borough,  C.  J.,  said,  "  There  was  no  contract  at  all  between  the 
plaintiffs  and  defendants  :  in  which  case  non  oritur  actio."  In 
Batson  v.  Donovan,  4  Barn.  &  Aid.  21,  Best,  J.  and  the  whole 
Court  agreed,  that  though  the  carrier  must  make  the  proper  in- 
quiries, yet  "  the  effect  of  the  notice  is  to  prevent  the  necessity  of 
a  particular  inquiry  in  each  case."  Harris  ».  Packwood,  3  Taunt. 
264,  is  also,  that  unless  the  notice  be  complied  with,  there  is  no 
contract  at  all,  and  in  case  of  loss,  the  plaintiff  cannot  recover 
even  the  lesser  sum  specified. 

So  long  as  the  printed  notice  of  a  common  carrier  is  confined 
to  the  purposes  which  I  have  enumerated,  and  others  calculated  to 
save  himself,  without  mischief  to  his  customer,  or  for  the  benefit 
of  the  latter,  I  see  no  objection  in  principle  to  give  it  full  effect. 
So  far  it  is  not  a  refusal  to  carry  for  a  reasonable  reward.  So  far 
it  is  not  a  limitation  of  the  carrier's  liability.  He  merely  declares 
to  the  customer  what  is  true  and  just  :  "  You  know  the  value  of 
your  goods  ;  I  will  not  rummage  your  parcel  :  I  will  take  your 
own  account  ;  but  I  will  not  incur  the  responsibility  of  a  common 
carrier  unless  your  account  shall  prove  true.  If  you  commit  a 
fraud,  or  deal  captiously  or  capriciously  on  your  own  part,  you 
cannot  complain  if  my  duty  is  reduced  to  that  of  a  mandatary." 

I  have  taken  pains  to  look  at  the  English  cases  concerning 
carriers'  notices,  with  a  view  to  the  principles  mentioned  ;  and, 
considering  the  loud  and  repeated  complaints  which  have  been 
made  against  them  as  a  pernicious  innovation,  I  have  been  disap- 
pointed to  find  them,  with  very  few  exceptions,  confined  within 
those  principles,  and  well  sustained  both  by  authority  and  the 
analogy  of  the  law  of  insurance.  To  deny  that  nearly  all  of  them, 
I  do  not  say  quite  all,  so  far  as  they  give  general  effect  to  such 
notices,  are  not  to  enter  into  and  form  a  part  of  our  own  law, 
would,  it  appears  to  me,  be  to  rise  against  the  united  authority  of 
Westminster  Hall,  both  before  and  since  the  revolution.  I  do  not 
speak  of  the  various  qualifications  under  which  they  have  been 
received,  arising  from  some  differences  of  language  in  the  notices 
themselves,  diversity  of  circumstances  to  which  they  have  been 
applied,  or  the  conflict  of  judicial  authority.  These  may  justly 
form  the  subject  of  complaint.  But  to  make  a  difficulty  in  under- 
standing and  applying  the  language  of  commercial  instruments  an 
objection  to  the  instruments  themselves,  would  long  since  have 
stricken  many  such  from  existence. 


Xl  APPENDIX. 

Most  of  the  litigation  upon  this  subject  has  arisen  from  notices 
said  to  have  been  got  up  with  a  view  to  protect  carriers  by  land  in 
wheel  carriages  or  sleighs.  The  cases  are  very  numerous,  and  I 
cannot  pretend  to  cite  them  all ;  but  will  simply  refer  to  such  as  I 
have  found  on  considerable  search,  in  order  that  it  may  be  seen, 
whenever  thought  worth  while,  how  nearly  they  all  come  in  princi- 
ple, and  mostly  even  in  words  and  letters,  to  the  examples  already 
exhibited  from  Smith  v.  Home,  and  Gibbons  v.  Paynton.  Vide 
Yate  v.  Willan,  2  East,  128;  Izett  v.  Mountain,  4  Id.  371  ;  Clark 
v.  Gray,  6  Id.  564  ;  2  Smith,  262,  and  4  Esp.  177,  S.  C. ;  Nichol- 
son v.  Willan,  5  East,  507,  2  Smith,  107,  S.  C.  ;  Batson  v.  Dono- 
van, 4  Barn.  &  Aid.  21;  Thorogood  v.  Marsh,  1  N.  Gow.  105; 
Covington  v.  Willan,  Id.  115  :  Bignold  v.  Waterhouse,  1  Maule  & 
Sel.  255 ;  Riley  v.  Home,  5  Bing.  217 ;  Newborn  v.  Just,  2  Carr. 
&  Payne,  76 ;  Brooke  v.  Pickwick,  4  Bing.  218  ;  Garnett  v.  Wil- 
lan, 5  Barn.  &  Aid.  53  ;  Sleat  v.  Fagg,  Id.  342  ;  Bradley  v.  Wa- 
terhouse, 3  Carr.  &  Payne,  318  ;  Macklin  v.  Waterhouse,  2  Moore 
&  Payne,  319,  and  Riley  v.  Home,  Id.  331,  both  these  cases  re- 
ported in  5  Bing.  217,  under  the  title  of  Riley  v.  Home  ;  Roskell 
v.  Waterhouse,  2  Stark.  461  ;  Hutton  v.  Bolton,  3  Doug.  59  ; 

1  H.  Black.  298,  S.  C.  note  ;  Kerr  v.  Willan,  6  Maul.  &  Sel.  150 ; 

2  Stark.  R.  53,  S.  C.  ;  Davis  v.  Willan,  2  Stark.  R.  279 ;  Alfred  v. 
Home,  3  Id.  136  ;  Clayton  v.  Hunt,  3  Campb.  27  ;  Butler  v.  Heane, 

2  Id.  415  ;  Rowley  v.  Home,  10  Moore,  247 ;  3  Bing.  2,  S.  C. ; 
Beck  v.  Evans,  16  East,  243 ;  4  Campb.  267,  S.  C.  ;  Wilson  v. 
Freeman,  3  Id.  527  ;  Levi  v.  Waterhouse,  1  Price,  280 ;  Low  v. 
Booth,  13  Id.   329 ;  Down  v.  Fromont,  4  Campb.  40  ;   Munn  v. 
Baker,  2  Stark.  R.  255  ;  Gougheru.  Jolly,  1  Holt,  N.  P.  Rep.  317  ; 
Cobden  v.  Bolton,  2  Campb.  108  ;  Marsh  v.  Home,  5  Barn.  & 
Cress.  322  ;  Bodenham  v.  Bennett,  4  Price,  31 ;  Mahew  v.  Eames, 

3  Barn.  &  Cress.  601  ;  Clayr.  Willan,  1  H.  Black.  298.    If,  instead 
of  looking  at  the  original  cases,  any  one  be  desirous  of  seeing  their 
general  character  at  a  shorter  glance,  he  will  find  many  of  them 
abstracted  in  Wheat.  Selw.  N.  P.,  Carriers,  2;  and  still  more  copi- 
ously in   5  Petersd.  Abr. ;  Carriers  by  Land,  p.  64  to  86,  Am. 
ed.  with   Ham.   Suppl. ;    Carriers'  Notices,  effect  of,  p.  227  to 
236. 

These  notices  have,  in  some  of  their  aspects,  been  occasionally 
vindicated,  per  Lawrence,  J.,  in  Harry  v.  Packwood,  3  Taunt.  264, 


COLE  V.    GOODWIN.  xli 

and  Best,  C.  J.,  in  Riley  v.  Home.  In  the  first  case,  Mansfield, 
C.  J.,  complained  of  them  as  leading  to  frauds,  by  disclosures  of 
value  to  persons  standing  around ;  but  he  adds,  however  inconve- 
nient that  may  be,  "  it  seems  that  from  the  days  of  Aleyn  down  to 
this  hour,  the  cases  have  again  and  again  decided  that  the  liability 
of  a  carrier  may  be  so  restrained."  Lord  Ellenborough,  in  Down 
v.  Fromont,  4  Campb.  40,  expressed  his  sorrow  that  carriers  had 
been  allowed  to  limit  their  Common  Law  responsibility  at  all,  and 
said  that  some  legislative  measure  upon  the  subject  would  soon 
become  necessary.  Several  statutes  had  then  already  been  passed 
in  England,  fixing  limits  to  the  responsibility  of  carriers  by  water ; 
and  in  1830,  the  stat.  1  Wm.  IV.  68,  restrained  the  effect  of  the 
notice  by  land  carriers,  but  adopted  the  great  principle  of  the  no- 
tice, by  requiring  the  owner  to  state  the  value  of  certain  enume- 
rated articles  to  the  carrier  at  the  time  of  delivery.  A  short 
abstract  of  these  statutes  is  given  in  2  Kent's  Comm.  605,  and  the 
note  there.  The  statute  of  1830  is  stated  more  at  large  in  Id.  607, 
note  c.  And  it  is  handsomely  abridged  section  by  section,  with  all 
its  provisions,  in  Smith's  Mercantile  Law,  170,  171. 

Some  few  American  books  may  be  said  to  amount  to  a  general 
recognition  of  the  validity  of  the  carrier's  notice,  without,  however, 
fixing  any  boundary  to  its  object  or  operation.  Orange  County 
Bank  v.  Brown,  9  Wend.  115,  per  Nelson,  J. ;  Phillips  v.  Earle, 
8  Pick.  182  ;  Bean  v.  Green,  3  Fairfield,  422. 

So  much  both  for  judicial  and  legislative  action,  the  great  mass 
of  which  has  been  directed  to  enforce  a  fair  course  of  conduct  on  the 
side  of  the  bailor.  They  all  go  upon  the  most  obvious  ground,  that 
a  man  shall  not  raise  an  action  in  his  favor  out  of  his  own  fraud  or 
neglect. 

C.  J.  Best,  2  Moore  &  Payne,  341,  342,  thus  sums  up  the  points 
which  are  material  to  the  case  before  us  :  —  "  That  a  carrier  is  an 
insurer  of  the  goods  that  he  carries  ;  that  he  is  obliged  for  a  rea- 
sonable reward  to  carry  any  goods  that  are  offered  him,  to  the  place 
to  which  he  professes  to  carry  goods,  if  his  carriage  will  hold  them, 
and  he  is  informed  of  their  quality  and  value  ;  that  he  is  not  obliged 
to  take  a  package,  the  owner  of  which  will  not  inform  him  what 
are  its  contents,  and  of  what  value  they  are  ;  that  if  he  do  not  ask 
for  this  information,  or  if,  when  he  asks  and  is  not  answered,  he  still 
takes  the  goods,  he  is  answerable  for  their  amount,  whatever  that 


xlii  APPENDIX. 

v 

may  be  ;  that  he  may  limit  his  responsibility  as  an  insurer  by 
notice."  It  is  the  extent  of  this  right  of  notice  or  of  special  accept- 
ance, which  is  the  important  object  of  attention. 

Suppose  all  the  reasonable  terms  of  the  carrier  complied  with  ; 
the  value  disclosed,  or  the  goods  weighed,  where  that  is  required, 
as  it  may  be,  per  Nelson,  J.,  in  Orange  County  Bank  v.  Brown, 
9  Wend.  114,  Munn  v.  Baker,  2  Stark.  R.  255,  the  premium  paid, 
or  secured  without  inquiry,  or  according  to  value  or  weight,  the 
goods  booked  and  placed  in  the  coach  beyond  the  reach  or  the 
knowledge  of  the  owner ;  having  come  hundreds  of  miles  perhaps 
of  his  journey,  relying  on  coach  owners,  who  take  all  the  benefits 
and  privileges  of  common  carriers,  he  meets  on  going  into  an 
office,  for  the  first  time,  with  the  unqualified  notice,  "  all  baggage 
at  the  risk  of  the  passenger."  Suppose  a  case  of  no  notice,  but 
simple  refusal  to  take  on  Common  Law  terms ;  no  one  will  pretend 
that  the  carrier  could  enforce  such  a  claim.  Is  the  notice  any 
thing  more  ?  It  comes  to  the  bailor's  knowledge  for  the  first  time 
in  his  life.  He  is  surprised  with  a  declaration,  that  all  his  reliance 
for  the  safety  of  his  baggage  is  gone,  unless  he  shall,  in  case  of  its 
loss,  have  the  luck  to  prove  by  the  servants  of  the  coach  owner, 
the  instruments  of  misfeasance  or  neglect,  that  one  or  the  other 
has  intervened.  What  is  the  reason  that  the  Common  Law  will  not 
excuse  the  carrier  unless  he  show  the  act  of  God,  or  the  enemies  of 
the  republic,  or  the  misconduct  of  the  plaintiff?  This,  says  Lord 
Holt,  "  is  a  politic  establishment,  contrived  by  the  policy  of  the  law 
for  the  safety  of  all  persons  the  necessity  of  whose  affairs  require 
them  to  trust  these  sorts  of  persons,  that  they  may  be  safe  in  their 
ways  of  dealing  ;  for  else  these  carriers  might  have  an  opportunity 
of  undoing  all  persons  that  had  any  dealings  with  them,  by  com- 
bining with  thieves,  &c.,  and  yet  doing  it  in  such  a  clandestine 
manner  as  would  not  be  possible  to  be  discovered."  Coggs  v. 
Bernard,  2  Ld.  Raym.  918.  Nor  was  this  said  of  a  barbarous 
people  or  a  barbarous  age  ;  but  in  the  reign  of  Queen  Anne,  of 
morals,  arts,  and  arms,  an  age  distinguished  as  the  Augustan  era  of 
England.  As  late  as  1828,  in  Riley  v.  Home,  Best,  C.  J.  said  :  — 
"  If  the  goods  should  be  lost  or  injured  by  the  grossest  negligence 
of  the  carrier  or  his  servants,  or  stolen  by  them,  or  by  thieves  in 
collusion  with  them,  the  owner  would  be  unable  to  prove  either  of 
these  causes  of  loss ;  his  witnesses  must  be  the  carrier's  servants, 


COLE  v.  GOODWIN.  xliii 

and  they,  knowing  that  they  could  not  be  contradicted,  would  excuse 
their  masters  and  themselves.  2  Moore  &  Payne,  337.  It  would 
be  arrogant  in  any  nation  to  claim  a  state  of  morals  superior  to  those 
of  England,  and  especially  to  Scotland,  where  the  same  rigor  pre- 
vails ;  still  more  arrogant,  not  to  say  profane,  to  claim  a  national 
perfectibility  so  high  as  to  rise  above  temptation.  Chancellor  Kent 
admires  the  steady  and  firm  support  which  the  English  Courts  have 
given  to  the  salutary  rule  of  law  on  this  subject,  without  bending  to 
popular  sympathies,  or  yielding  to  the  hardships  of  a  particular  case. 
2  Kent's  Comm.  601,  602,  3d  ed. 

Can  the  carrier  in  any  way  put  an  absolute  limit  in  his  own  dis- 
cretion on  his  own  duty  and  responsibility,  thus  based  upon  founda- 
tions of  public  policy  ?  In  the  first  place,  how  stand  the  books  ? 
In  Kirkman  v.  Shawcross,  6  T.  R.  14,  it  was  held,  that  dyers  and 
bleachers  might,  by  resolution  and  notice  to  their  customers,  enlarge 
their  respective  liens  on  goods  bailed  to  them,  so  as  to  cover  a  gen- 
eral balance.  But  Lord  Kenyon,  C.  J.,  differed  the  case  from  that 
of  common  carriers,  who  had  no  power  to  impose  such  terms.  His 
words  are  :  —  "  They  have  no  right  to  say  they  will  not  receive  any 
goods  but  on  their  own  terms ;  "  though  he  recognized  their  right 
to  the  notice  protective  against  the  fraud  of  the  bailor.  So  he  said 
of  innkeepers,  "  who  are  bound  to  protect  the  property  of  their 
guests.  Ashhurst,  J.,  speaks  of  the  obligation  of  innkeepers  as 
indelible."  The  same  distinction  was  recognized  by  Alvanley, 
C.  J.,  in  Oppenheim  v.  Russell,  3  Bos.  &  Pull.  42,  47.  He  was 
followed  by  Rook,  J.,  in  the  same  case.  Chambre,  J.,  added,  that 
such  a  notice  by  a  carrier  would  be  "  so  manifestly  unreasonable 
and  monstrous,  that  I  think  no  legal  agreement  can  be  implied  from 
such  a  notice."  In  Lane  v.  Cotton,  1  Salk.  18,  Holt,  C.  J.,  places 
the  occupation  of  a  carrier  on  the  list  of  public  employments,  and 
adds  that  his  undertaking  is  in  proportion  to  his  power  and  conven- 
ience. In  the  report  of  the  same  case,  in  12  Mod.,  he  thus  groups 
the  reasons  for  the  duty  of  the  carrier  and  the  innkeeper  :  —  "  For 
what  is  the  reason  that  a  carrier  or  innkeeper  is  bound  to  keep  such 
goods  as  he  receives,  at  his  peril  ?  It  is  grounded  upon  great  equity 
and  justice  ;  for  if  they  were  not  chargeable  for  loss  of  goods,  with- 
out assigning  any  particular  default  in  them,  they  having  such  op- 
portunity as  they  have  by  the  trust  reposed  in  them,  to  cheat  all 
people,  they  would  be  so  apt  to  play  the  rogue  and  cheat  people, 


APPENDIX. 


without  almost  a  possibility  of  redress,  by  reason  of  the  diffi- 
culty of  proving  a  default  particularly  in  them,  that  the  incon- 
veniency  would  be  very  great.  And  though  one  may  think  it  a 
hard  case  that  a  poor  carrier,  who  is  robbed  on  the  road  without  any 
manner  of  default  in  him,  should  be  answerable  for  all  the  goods  he 
takes,  yet  the  inconveniency  would  be  far  more  intolerable  if  it  were 
not  so  ;  for  it  would  be  in  his  power  to  combine  with  robbers,  or  to 
pretend  a  robbery,  or  some  other  accident,  without  a  possibility  of 
remedy  to  the  party  ;  and  the  laws  will  not  expose  him  to  so  great  a 
temptation  ;  but  he  must  be  honest  at  his  peril."  Taking  the  argu- 
ments of  Holt  and  Best,  a  relaxation  of  the  Common  Law  rigor 
opens  the  high  road  to  fraud,  perjury,  larceny,  and  robbery.  "  Com- 
mon carriers  must  not  understand,"  says  Lawrence,  J.,  in  Nicholson 
«.  Willan,  2  Smith,  113,  "  that  they  can  impose  any  terms  which 
they  please  upon  persons  who  send  goods."  Where  is  the  bound- 
ary ?  The  defendant,  in  the  case  before  us,  says  the  carrier  himself 
is  to  prescribe  it.  If  this  be  so,  it  is  easy  to  see  that  the  Common 
Law  is  overcome,  for  it  never  was  thought  that  if  this  question  were 
intrusted  to  the  party  instead  of  the  law,  the  fences  against  damage 
and  loss  would  stand  for  a  moment.  The  case  in  hand  is  not  an 
effort  to  secure  a  fair  premium  for  carrying  baggage.  That  pre- 
mium is  demanded  and  received  in  the  name  of  passenger's  fare. 
To  say  the  contrary,  is  against  common  sense,  and  a  shallow  eva- 
sion ;  nor  is  it  indeed  presented.  You  cannot  raise  a  distinction  in 
this  way  between  a  passenger  and  his  travelling  trunk,  which  is  to 
contain  his  clothes  and  money  for  travelling  expenses,  and  his 
books,  if  he  be  on  his  way  to  college,  as  in  this  case. 

I  will  now  proceed  to  consider  such  few  dicta  and  adjudications, 
as  I  have  been  able  to  find,  in  virtue  of  which  I  admit,  if  they  are 
to  prevail,  the  common  carrier  will  himself  hereafter  give  the  law  ; 
and  the  result  will  be,  that  in  the  course  of  a  short  time  no  single 
person,  properly  sustaining  that  character,  will  be  left  in  the  State. 
To  this  effect,  it  is  said,  we  have  the  opinion  expressed  on  the 
occasion  of  a  bill  sent  up  from  the  House  of  Commons,  some  time 
after  the  decision  in  Smith  v.  Shepherd,  in  1795,  Abbott  on  Shipp. 
Pt.  3,  ch.  4,  §  1.  In  Lyon  v.  Mells,  1  Smith,  484,  Lord  Ellen- 
borough,  C.  J.,  gives  this  account  of  the  matter  :  "  If  the  carrier 
is  at  liberty  to  refuse  absolutely  to  carry  money,  he  may  also  refuse 
to  carry  any  thing  else  ;  but  he  is  bound  to  take  for  a  reasonable 


COLE   V.- 'GOODWIN.  xlv 

reward.  There  must  le,  therefore,  some  limitation.  A  bill  was 
brought  into  parliament  to  alter  the  law  with  respect  to  ship  owners  ; 
but  it  was  thrown  out  by  the  law  lords,  that  the  parties  might 
relieve  themselves  against  the  liability  to  the  full  extent,  by  a 
special  notice  and  agreement.  This  caused  an  alteration  in  the 
bills  of  lading,  and  also  several  public  notices,  which  are  mentioned 
in  several  cases  in  this  Court."  Morse  v.  Slue,  1  Ventr.  190,  238, 
a  previous  case  in  Carr.  II.,  was  deemed  a  very  hard  one  on  ship 
owners.  The  ship  was  robbed  by  a  very  strong  force.  The  de- 
fendant, though  acquitted  by  the  jury  of  all  fault,  was  yet  held 
liable.  The  ship,  being  in  corpus  comitatus,  as  Hale  said,  on  the 
cause  being  a  second  time  taken  up  by  the  Court,  was  subject  to 
the  law  of  common  carriers.  Secondly,  said  he,  "  If  the  master 
would,  he  might  have  made  a  caution  for  himself,  which  he  omit- 
ting and  taking  in  the  goods  generally,  he  shall  answer  for  what 
happens."  The  case  of  Lyon  v.  Mells,  1  Smith,  478,  was  itself  of 
a  most  extraordinary  character  for  the  extent  of  exemption  claimed 
under  the  notice  ;  and  though  the  Court  were  enabled  to  avoid  de- 
ciding upon  its  general  effect,  it  is  worthy  of  remark,  as  showing  to 
what  lengths  carriers  immediately  attempted  to  proceed  under  the 
favorable  suggestion  of  the  law  lords.  The  notice  was,  that  the 
defendant  would  not  be  responsible  for  any  loss  or  damage  to  any 
cargo,  unless  it  happened  by  want  of  ordinary  care  and  diligence 
in  the  master  and  crew,  and  even  then  only  to  10  per  cent.,  this 
not  to  exceed  the  value  of  the  vessel,  &c.,  and  if  any  person  was 
desirous  to  subject  the  defendant  for  losses  by  the  act  of  God  or 
otherwise,  he  must  make  a  special  agreement  and  pay  extra  freight. 
The  notice  was  signed  by  forty-nine  owners  of  vessels  at  Hull,  and 
published  in  due  form.  As  the  neglect  proved  was  finally  thought 
to  be  that  of  the  owner  himself,  the  case  was  held  not  to  come  within 
the  notice,  and  the  Court  did  not  think  it  necessary  to  say  definitely, 
whether  it  would  protect  against  the  negligence  of  the  master  and 
crew.  The  owner  furnished  a  leaky  vessel.  And  as  to  the  10  per 
cent,  clause,  that  could  be  applied  in  reason  only  to  losses  which 
might  happen  by  accident.  5  East,  428,  S.  C.  At  the  close  of  the 
argument,  as  stated  by  Smith's  Report,  in  which  the  utter  illegality 
of  the  notice  had  been  insisted  on  as  contrary  to  the  policy  of  the 
law,  Lord  Ellenborough,  C.  J.,  said,  that  if  it  should  be  necessary 
to  decide  the  case  upon  general  principles,  it  was  of  great  import- 


APPENMX. 


ance.  This  was  said  in  1804,  and  from  it  I  clearly  collect,  that  the 
power  of  carriers  to  qualify  their  duty  to  the  owners,  of  goods  fairly 
committed  to  them,  was  still  open.  This  conspiracy  among  the 
ship  owners  at  Hull  to  subvert  the  Common  Law  in  respect  to  their 
own  community,  makes  its  first  appearance  to  us  in  Ellis  v.  Turner, 
8  T.  R.  531,  A.  D.  1800.  And  in  that  case,  I  think  the  notice  was 
at  least  shorn  of  its  power  to  protect  the  owner  against  the  miscon- 
duct of  the  master,  by  which  the  loss  happened.  Yet  even  this 
notice  came  short  of  some  others,  which  were,  as  we  shall  see,  sub- 
sequently allowed  ;  for  it  left  the  owner  a  privilege  to  get  an  insur- 
ance under  a  special  contract. 

The  contest  in  respect  to  such  sweeping  qualifications  seems  to 
have  been  less  frequent  since  the  resistance  they  met  in  Lyon  v. 
Mells,  though  Lord  Tenterden,  late  Abbott,  C.  J.,  in  his  Treatise 
on  Shipping,  Pt.  3,  ch.  4,  §  8,  p.  296,  Story's  ed.  of  1822,  has  left 
on  record  an  instance,  in  which  he  thinks  that  by  the  usual  excep- 
tion in  the  bill  of  lading,  the  master  may  stand  protected  against 
the  loss  by  fire.  Per  Green,  J..  in  Gordon  v.  Buchanan,  5  Yerg: 
71,  82,  S.  P.  In  other  respects,  the  liability  of  both  master  and 
owners,  as  common  carriers,  has  in  England  been  modified  by 
statutes,  though  these  do  not,  like  the  statute  there  in  respect  to  land 
carriers,  expressly  preclude  the  proper  notice,  or  other  mode  of 
stipulation  for  farther  protection.  Smith's  Mercantile  Law,  182  to 
184  ;  Id.  170,  171  ;  Abbott  on  Shipp.  Pt.  3,  ch.  5,  Story's  ed.  1S22, 
p.  297  to  303.  But  the  statutes  have  probably  been  the  main  reli- 
ance of  ship  owners. 

The  later  English  books  are,  however,  by  no  means  barren  of 
cases  going  all  lengths  to  the  absolute  protection  of  the  carrier, 
both  by  water  and  land.  In  Evans  v.  Soule,  2  Maule  4s  Selw.  1,  a 
carrier  by  water  from  Bristol  to  Worcester,  was  allowed  to  protect 
himself  against  a  loss  in  consequence  of  the  vessel  having  sunk, 
under  a  public  notice  that  all  goods  would  be  carried  at  the  risk  of 
the  owners,  unless  the  loss  or  damage  should  arise  through  the 
actual  default  of  the  master  and  mariners.  The  validity  of  the 
notice  was  not  debated  ;  but  the  counsel  for  the  plaintiff,  after 
assuming  that  the  notice  was  valid  within  Gibbon  v.  Paynton,  4 
Burr.  2298,  and  Nicholson  v.  Willan,  5  East,  507,  contended,  that 
it  had  been  waived  by  the  mode  of  the  defendant's  dealing.  That 
view  was  overruled,  and  judgment  given  for  the  defendant.  This 


COLE  V.  GOODWIN. 

decision  was  in  1813,  Lord  Ellenborough  presiding,  and  we  shall 
soon  see  how  rapidly  the  easy  surrender  to  a  single  encroachment, 
under  the  administration  too  of  a  very  able  jurist,  led  to  a  total 
conquest  over  what  Chancellor  Kent  denominates,  and  every  lawyer 
must  agree  to  have  been,  a  most  salutary  rule  in  the  law  of  carriers. 
How  far  he  may  stand  justified  in  complimenting  the  firmness  of 
the  English  Courts  in  maintaining  the  rule,  will  also  be  seen.  2 
Kent's  Com.  601,602,  3d  ed.  Its  form  may  still  figure  in  our 
books  ;  but  I  venture  to  say,  that  if  we  yield  one  inch  to  the  course 
of  modern  English  adjudication,  its  spirit  is  gone.  The  obligation 
of  common  carriers  will  become  as  remarkable  for  its  laxity  as  it 
has  heretofore  been  for  its  rigor.  I  will  only  repeat,  in  respect  to 
this  case,  what  seems  to  me  perfectly  obvious ;  and  which  I  have, 
if  not  very  unsuccessful,  made  somewhat  apparent  to  others,  that 
the  difference  between  the  two  cases  from  Burrow  and  East,  and 
that  of  Evans  v.  Soule  is,  that  the  notices  in  the  former  went 
merely  to  protect  against  the  fraud  of  the  bailor,  and  the  latter  to 
conceal  and  favor  fraud  directed  against  the  owner,  and  in  favor  of 
the  party  giving  the  notice.  The  one  was  for,  and  the  other  against, 
the  public  morals ;  the  former  said  merely,  "  give  me  a  due  reward, 
and  I  will  be  accountable  as  a  common  carrier  ;  "  the  latter,  "  give 
me  the  same  reward,"  (for  the  carrier  fixes  it ;  it  may  be  less,  but 
may  also  be  more,)  "  and  yet  I  claim  to  throw  all  risk  upon  you,  or 
such  a  degree  of  it  as  I  please."  In  the  former,  the  plaintiff"  sought 
to  commit,  and  did  commit  actual  frauds  after  express  notice  that 
he  must  be  honest.  He  sought  in  that  way  to  deprive  the  laborer 
of  a  reasonable  reward  for  his  hire.  In  the  latter,  he  was  paid  all 
he  demanded,  and  yet  he  refuses  to  carry  under  the  obligation 
required  by  law. 

Lathan  v.  Rutley,  2  Barn.  &  Cress.  20,  was  a  question  of  plead- 
ing, and  no  farther  touches  the  point  before  us,  than  as  it  was  as- 
sumed at  Nisi  Prius  by  Abbott,  C.  J.  and  the  counsel  in  the  cause, 
that  a  common  carrier  by  land  might  give  a  receipt  for  goods,  "  fire 
and  robbery  excepted."  In  Maving  v.  Todd,  1  Stark.  R.  72,  A.  D. 
1815,  before  Lord  Ellenborough,  C.  J.,  the  first  question  submitted 
was,  whether  the  defendants  stood  in  the  relation  of  common  car- 
riers to  the  plaintiff;  and  it  was  held  that  they  did.  The  goods 
had  been  destroyed  by  fire  ;  but  the  defendants  brought  to  the 
knowledge  of  the  plaintiff  a  notice  that  they  would  not  be  respon- 


xlviii  APPENDIX. 

siblefor  losses  lyjire.  Holroyd  submitted  whether  the  defendants 
could  exclude  their  responsibility  altogether.  This  was  going 
farther  than  had  been  done  in  the  case  of  carriers,  who  had  only 
limited  their  responsibility  to  a  certain  amount*  His  lordship  said, 
"  Since  they  can  limit  it  to  a  certain  sum,  I  think,  they  may  exclude 
it  altogether ;  and  that  they  may  say  we  will  have  nothing  to  do 
with  fire."  Holroyd  :  "  They  were  bound  to  receive  the  goods." 
Lord  Ellenborough  :  "  Yes ;  but  they  may  make  their  own  terms. 
I  am  sorry  the  law  is  so  ;  it  leads  to  very  great  negligence."  And 
the  plaintiff  was  nonsuited.  This  case  certainly  goes  the  whole 
length.  The  goods  were  committed  to  the  carrier  in  perfect  fair- 
ness. A  subsequent  case  in  the  same  volume,  Leeson  v.  Holt, 
1  Stark.  R.  186,  A.  D.  1816,  is  still  broader.  The  defendants, 
common  carriers,  received  chairs  of  the  plaintiff,  to  be  carried 
from  Nottingham  to  London  ;  but  they  had  published  a  notice, 
that  all  packages  of  looking  glass,  plate  glass,  household  furniture, 
toys,  Sfc.  were  to  be  entirely  at  the  risk  of  the  owners,  as  to  dam- 
age, breakage,  fyc.  The  main  question  was,  whether  this  notice 
had  been  brought  to  the  knowledge  of  the  plaintiff's  agent ;  and 
the  fact  was  submitted  to  the  jury  :  in  charging  whom,  Lord  Ellen- 
borough,  C.  J.  said,  "  If  this  action  had  been  brought  twenty  years 
ago,  the  defendants  would  have  been  liable,  since,  by  the  Common 
Law,  a  carrier  is  liable  in  all  cases  except  two  —  where  the  loss  is 
occasioned  by  the  act  of  God,  or  of  the  king's  enemies  using  an 
overwhelming  force,  which  persons  of  ordinary  means  of  resistance 
cannot  guard  against.  It  was  found  that  the  Common  Law  im- 
posed upon  carriers  a  liability  of  ruinous  extent;  and,  in  conse- 
quence, qualifications  and  limitations  of  that  liability  have  been 
introduced  from  time  to  time,  till,  as  in  the  present  case,  they 
seem  to  have  excluded  all  responsibility  whatsoever  ;  so  that  under 
the  terms  of  the  present  notice,  if  a  servant  of  the  carriers  had  in 
the  most  wilful  and  wanton  manner  destroyed  the  furniture  in- 
trusted to  him,  the  principals  would  not  have  been  liable.  If  the 
parties  in  the  present  case  have  so  contracted,  the  plaintiff  must 
abide  by  the  agreement ;  and  he  must  be  taken  to  have  so  con- 
tracted, if  he  chooses  to  send  his  goods  to  be  carried  after  notice 
of  the  conditions.  The  question  then  is,  whether  there  was  a 
special  contract,  &c."  The  jury  found  for  the  plaintiff,  on  the 
question  of  his  agent  having  seen  the  notice.  See  Barney  v. 


COLE  V.   GOODWIN. 


Prentiss,  4  Har.  &  Johns.  317.  Now  in  the  first  place,  I  feel 
quite  happy  to  be  assured  by  the  charge  of  Lord  Ellenborough,  of 
what  I  think  I  had  already  collected  from  the  cases,  that  there  is 
no  adjudication  of  aj  date  anterior  to  the  American  Revolution, 
which  sanctions  the  frittering  away  of  the  responsibility  of  a  com- 
mon carrier,  by  exceptions,  provisoes,  special  acceptances,  notices, 
or  otherwise,  for  his  own  exclusive  benefit,  and  having  no  respect 
to  the  duty  of  the  bailor.  The  concluding  note  of  Lord  Coke  to 
Southcote's  case,  cited  to  us  from  4  Rep.  84,  which,  though  no 
more  than  his  own  opinion,  is  yet  high  authority,  has  no  specific 
application  to  the  case  of  a  carrier.  He  speaks  of  a  special  ac- 
ceptance by  bailees  generally  ;  and  we  have  a  distinction  taken  in 
Kirkman  v.  Shawcross,  and  Oppenheim  v.  Russell,  against  com- 
mon carriers  and  innkeepers.  And  I  feel  quite  confident  that  we 
have  already  seen  a  great  deal  of  principle,  and  considerable  in 
the  shape  of  authority,  and  there  is  much  more  of  both,  running 
through  the  books,  which  go  to  sustain  the  distinction.  With 
how  much  propriety  Lord  Ellenborough  confined  the  date  of  the 
innovation  to  twenty  years,  is  obvious  by  the  previous  remarks  of 
Lord  Kenyon,  C.  J.  (A.  D.  1793,)  in  Hyde  v.  Proprietors  of  the 
Trent  and  Mersey  Navigation,  1  Esp.  R.  36.  He  said,  "  There 
is  a  difference  where  a  man  is  chargeable  by  law  generally,  and 
where  on  his  own  contract.  Where  a  man  is  bound  to  any  duty, 
and  chargeable  to  a  certain  extent  by  operation  of  law,  in  such 
case,  he  cannot  by  any  act  of  his  own  discharge  himself  —  as  in 
the  case  of  common  carriers,  who  are  liable  by  law  in  all  cases  of 
losses,  except  those  arising  from  the  act  of  God,  or  of  the  king's 
enemies  ;  they  cannot  discharge  themselves  from  losses  happening 
under  these  circumstances,  by  any  act  of  their  own  ;  as  by  giving 
notice,  for  example,  to  that  effect.  But  the  case  is  otherwise  where 
a  man  is  chargeable  on  his  own  contract.  There  he  may  qualify  it 
as  he  thinks  fit."  See  also  Jeremy's  Law  of  Carriers,  36. 

All  that  Lord  Ellenborough  said  in  the  two  cases  cited  from 
1  Starkie,  certainly  presses  upon  the  mind  when  applied  to  ordi- 
nary bailees.  They  may  make  their  terms  ;  and  we  have  seen  the 
same  thing  as  to  carriers,  so  far  as  the  terms  are  protective  against 
the  abuses  of  the  bailor,  or  for  the  reasonable  protection  of  the 
bailee,  without  hurt  or  serious  inconvenience  to  the  former.  Nor 
am  I  able  to  make  any  distinction  between  a  notice  and  a  receipt 
E 


1  APPENDIX. 

or  bill  of  lading.  Being  brought  home  to  the  plaintiff,  the  notice 
is  equivalent  to  a  special  written  contract.  The  cases,  I  believe, 
all  agree  in  this.  They  may  differ  as  to  whether  the  restriction 
be  a  limitation  of  the  contract,  or  only  of  damages  under  it,  an 
exception  or  a  proviso,  and  so  may  or  may  not  be  set  forth  in  plead- 
ing ;  Clark  v.  Gray,  6  East,  564 ;  Latham  v.  Rutley,  2  Barn.  & 
Cress.  20,  and  the  cases  there  cited  ;  but  the  terms  of  the  notice, 
when  they  are  admissible,  enter  into  the  framework  of  the  bar- 
gain, and  must  in  some  form  be  so  regarded.  The  cases  in  Starkie 
are  Nisi  Prius  decisions,  indicating  on  their  face  the  haste  and 
want  of  books  which  are  so  common  at  the  circuit ;  and  yet  it  is 
claimed  that  they  should  at  least  strike  a  balance  between  con- 
flicting authority,  and  surrender  the  law  which  shelters  the  travel- 
ling and  trading  community,  to  the  discretion  of  its  interested  car- 
riers. It  is  indeed  true,  as  Lord  Ellenborough  remarks,  that  there 
is  no  stopping-place,  no  half-way  house.  If  the  carrier  can  divest 
himself  of  liability  for  destruction  by  one  kind  of  accident,  or  by 
one  servant,  he  may  in  the  same  way  go  through  the  catalogue. 
He  may  exonerate  himself  at  least  from  all,  except  gross  neglect 
or  misfeasance  ;  and  even  in  respect  to  these,  he  compasses  nearly 
the  same  end  by  inverting  the  onus  and  darkening  the  horizon  of 
evidence.  I  have  said,  that  relaxing  the  Common  Law  rigor  opens 
the  high  road  to  fraud,  perjury,  theft,  and  robbery.  It  does  more. 
Looking  to  the  present  ordinary,  not  to  say  universal  means  of  travel 
and  transportation,  by  coaches,  railroads,  steamboats,  packets,  and 
merchant  vessels,  the  mere  super-addition  of  negligence  in  respect 
to  the  safety  of  passengers  and  property,  would  constitute  a  most 
fearful  item.  There  are  no  principles  in  the  law  better  settled, 
than  that  whatever  has  an  obvious  tendency  to  encourage  guilty 
negligence,  fraud,  or  crime,  is  contrary  to  public  policy.  Such, 
in  the  very  nature  of  things,  is  the  consequence  of  allowing  the 
common  carrier  to  throw  off  or  in  any  way  restrict  his  legal  lia- 
bility. The  traveller  and  bailor  is  under  a  sort  of  moral  duress, 
a  necessity  of  employing  the  common  carrier  under  those  legal 
arrangements,  which  allow  any  number  of  persons  to  assume  that 
character,  and  thus  discourage  and  supersede  the  provision  for 
other  modes  of  conveyance.  My  conclusion  is,  that  he  shall  not 
be  allowed  in  any  form  to  higgle  with  his  customer,  and  extort  one 
exception  and  another,  not  even  by  express  promise  or  special  ac- 


COLE   V.    GOODWIN.  li 

ceptance,  any  more  than  by  notice.  He  shall  not  be  privileged  to 
make  himself  a  common  carrier  for  his  own  benefit,  and  a  man- 
datary, or  less,  to  his  employer.  He  is  a  public  servant,  with  cer- 
tain duties  defined  by  law  ;  and  he  is  bound  to  perform  those  duties. 
As  Ashhurst,  J.  said  of  the  duties  of  innkeepers  in  Kirkman  v. 
Shawcross,  they  are  indelible.  An  innkeeper  is  said  to  be  indictable 
for  extortion.  Per  Holroyd,  J.  in  Ansell  v.  Waterhouse,  2  Chit. 
R.  4.  The  obligation  of  a  jailor  to  keep  his  prisoners,  is  much  like 
that  of  the  carrier  in  keeping  goods.  Bac.  Abr.  Escape  in  Civil 
Ca.  (H.)  He  is  also  a  public  servant,  and  bound  to  perform  the 
duties  of  his  office.  To  demand  and  take  an  agreement  for  a 
special  acceptance  of  his  prisoner,  would  be  extortion,  and  the 
qualification  therefore  void.  In  my  opinion  the  same  consequences 
result  from  the  public  character  and  absolute  duties  of  the  common 
carrier.  I  therefore  think  the  defendants  in  the  case  at  bar  must 
take  the  consequence  of  their  obligation  as  common  carriers,  not- 
withstanding the  notice  to  the  plaintiff.  Admitting  that  the  plain- 
tiff acceded  in  the  clearest  manner  to  the  proposition  in  the 
notice,  that  his  baggage  should  be  carried  on  the  terms  mentioned, 
I  think  the  contract  thus  made  was  void  on  his  part,  as  contrary 
to  the  plainest  principles  of  public  policy.  In  thus  holding,  we 
follow  the  law,  as  it  is  expressly  admitted  by  the  English  Judges 
to  have  stood  at  the  period  when  our  ancestors  declared  themselves 
independent.  And  while  we  thus  fulfil  our  constitutional  duty,  we 
are  not,  like  Westminster  Hall,  obliged  to  lament  while  we  enforce 
the  law. 


Ill  APPENDIX. 


THE  NEW  JERSEY  STEAM  NAVIGATION  COMPANY,  RESPONDENTS 
AND  APPELLANTS, 

vs. 
THE  MERCHANTS'  BANK  OF  BOSTON,  LIBELLANTS. 

Supreme  Court  of  the  United   States,  (6  Howard's  Rep.  344.) 

A  decree  of 'the  Circuit  Court  of  Rhode  Island  affirmed,  which  was  a  judgment  upon 
a  libel  in  peraonam  against  n  steamboat  company  for  the  loss  of  specie  carried  in 
their  boat  by  one  of  the  persons  called  "  express  carriers,"  and  lost  by  fire  in  Long 
Island  Sound. 

[N.  B.  The  following  is  so  far  an  abridged  Report  of  this  case,  that  the  argu- 
ments of  counsel,  and  all  the  opinions  of  the  Judges  upon  the  question  of 
admiralty  jurisdiction,  which  was  decided  in  favor  of  the  libellants,  are  omitted. 
The  portion  of  it  which  is  given,  is  considered  to  be  important,  as  illustrating 
the  law  in  respect  to  the  power  of  common  carriers  to  restrict  their  Common 
Law  responsibility ,  by  special  contracts  and  notices,  and  in  respect  to  their  respon- 
sibility for  negligence,  notwithstanding  they  have  entered  into  such  contracts, 
or  given  such  notices  ;  and  also  the  law  as  to  the  liability  of  common  carriers  to 
be  sued  by  an  owner  of  goods  delivered  to  them  to  be  carried  by  au  "  express  " 
agent.] 

THIS  was  an  appeal  from  the  Circuit  Court  of  the  United  States 
for  the  District  of  Rhode  Island,  in  the  exercise  of  admiralty 
jurisdiction. 

In  February,  1839,  the  State  of  New  Jersey  chartered  a  com- 
pany by  the  name  of  the  New  Jersey  Steam  Navigation  Company, 
with  a  capital  of  five  'hundred  thousand  dollars,  for  the  purpose  of 
purchasing,  building,  repairing,  and  altering  any  vessel  or  vessels 
propelled  by  steam,  and  in  the  navigation  of  the  same,  &c.,  &c. ; 
under  which  charter  they  became  proprietors  of  the  steamboat 
Lexington. 

On  the  1st  of  August,  1839,  the  following  agreement  was 
made  :  — 

"  This  agreement,  made  and  entered  into  this  1st  day  of  August, 
A.  D.  1839,  in  the  city  of  New  York,  by  William  F.  Harnden,  of 
Boston,  Massachusetts,  on  the  one  part,  and  Ch.  Overing  Handy, 
President  of  the  New  Jersey  Steam  Navigation  Company,  of  the 
other  part  witnesseth  : 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK,     liii 

"  That  the  said  William  F.  Harnden,  for  and  in  consideration 
of  the  sum  of  two  hundred  and  fifty  dollars  per  month,  to  be  paid 
monthly  to  the  said  New  Jersey  Steam  Navigation  Company,  is  to 
have  the  privilege  of  transporting  in  the  steamers  of  said  company, 
between  New  York  and  Providence,  via  Newport  and  Stonington, 
not  to  exceed  once  on  each  day,  from  New  York  and  from  Provi- 
dence, and  as  less  frequently  as  the  boats  may  run  between  and 
from  said  places,  one  wooden  crate,  of  the  dimensions  of  five  feet 
by  five  feet  in  width  and  height,  and  six  feet  in  length,  (contents 
unknown,)  until  the  31st  of  December,  A.  D.  1839,  and  from  this 
date. 

"  The  following  conditions  are  stipulated  and  agreed  to,  as  part 
of  this  contract  to  wit :  —  The  said  crate,  with  its  contents,  is  to  be 
at  all  times  exclusively  at  the  risk  of  the  said  William  F.  Harnden ; 
and  the  New  Jersey  Steam  Navigation  Company  will  not,  in  any 
event,  be  responsible,  either  to  him  or  his  employers,  for  the  loss  of 
any  goods,  wares,  merchandise,  money,  notes,  bills,  evidences  of 
debt,  or  property  of  any  and  every  description,  to  be  conveyed  or 
transported  by  him  in  said  crate,  or  otherwise,  in  any  manner,  in 
the  boats  of  the  said  company. 

"  Further,  that  the  said  Harnden  is  to  attach  to  his  advertise- 
ments, to  be  inserted  in  the  public  prints,  as  a  common  carrier, 
exclusively  responsible  for  his  acts  and  doings,  the  following 
notice,  which  is  also  to  attach  to  his  receipts  or  bills  of  lading,  to 
be  given  in  all  cases  for  goods,  wares,  and  merchandise,  and  other 
property  committed  to  his  charge,  to  be  transported  in  said  crate  or 
otherwise  :  — 

"  '  Take  notice.  —  William  F.  Harnden  is  alone  responsible  for 
the  loss  or  injury  of  any  articles  or  property  committed  to  his  care  ; 
nor  is  any  risk  assumed  by,  nor  can  any  be  attached  to,  the  propri- 
etors of  the  steamboats  in  which  his  crate  may  be,  and  is  transported, 
in  respect  to  it  or  its  contents,  at  any  time.' 

41  Further,  that  the  said  Harnden  is  not  to  violate  any  provisions 
of  the  post-office  laws,  nor  to  interfere  with  the  New  Jersey  Steam 
Navigation  Company  in  its  transportation  of  letters  and  papers,  nor 
to  carry  any  powder,  matches,  or  other  combustible  materials  of 
any  kind,  calculated  to  endanger  the  safety  of  said  boats,  or  the 
property  or  persons  on  board  of  them. 

"  And  that  this  contract  may  be  at  any  time  terminated  by  the 
K* 


liv  APPENDIX. 

New  Jersey  Steam  Navigation  Company,  or  by  the  said  Harnden, 
upon  one  month's  notice  given  in  writing. 

"  Further,  that  a  contract  made  by  the  said  Harnden  with  the 
Boston  and  New  York  Transportation  Company,  on  the  5th  day  of 
July,  A.  D.  1839,  is  hereby  dissolved  by  mutual  consent. 

"  In  witness  whereof,  the  said  William  F.  Harnden  has  hereunto 
set  his  hand  and  seal,  and  the  President  of  the  said  New  Jersey 
Steam  Navigation  Company  has  hereto  affixed  his  signature  and 
the  corporate  seal  of  the  company. 

"  WM.  F.  HARNDEN,          [L.  s.] 

CH.  OVEEING  HANDY,  President. 
"Sealed  and  delivered  in  presence  of 
ROSWELL  E.  LocKwood." 

It  is  proper  to  remark,  that,  prior  to  the  date  of  this  agreement, 
Harnden  had  made  a  similar  one  with  the  Boston  and  New  York 
Transportation  Company,  which  became  merged  in  the  New  Jer- 
sey Steam  Navigation  Company  on  the  1st  of  August,  1839. 
Harnden,  having  begun  to  advertise  in  the  newspapers  in  July 
1839,  whilst  his  contract  with  the  Boston  company  was  in  force, 
continued  to  use  the  name  of  that  company  in  the  following  adver- 
tisement, which  was  inserted  in  two  of  the  Boston  newspapers,  until 
the  end  of  the  year  1839. 

"  Boston  and  New  York  Express  Package  Car.  —  Notice  to  Mer- 
chants, Brokers,  Booksellers,  and  all  Business  Men. 

"  Wm.  F.  Harnden,  having  made  arrangements  with  the  New 
York  and  Boston  Transportation,  and  Stonington  and  Providence 
Railroad  Companies,  will  run  a  car  through  from  Boston  to  New 
York,  and  vice  versa,  via  Stonington,  with  the  mail  train,  daily,  for 
the  purpose  of  transporting  specie,  small  packages  of  goods,  and 
bundles  of  all  kinds.  Packages  sent  by  this  line  will  be  delivered 
on  the  following  morning,  at  any  part  of  the  city,  free  of  charge. 
A  responsible  agent  will  accompany  the  car,  who  will  attend  to 
purchasing  goods,  collecting  drafts,  notes,  and  bills,  and  will  trans- 
act any  other  business  that  may  be  intrusted  to  his  charge. 

"  Packages  for  Philadelphia,  Baltimore,  Washington,  New  Ha- 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK.   Iv 

yen,  Hartford,  Albany,  and  Troy,  will  be  forwarded  immediately 
on  arrival  in  New  York. 

"  N.  B.  Wm.  F.  Harnden  is  alone  responsible  for  any  loss  or 
injury  of  any  articles  or  property  committed  to  his  care  ;  nor  is  any 
risk  assumed  by,  or  can  any  be  attached  to,  the  Boston  and  New 
York  Transportation  Company,  in  whose  steamers  his  crates  are 
to  be  transported,  in  respect  to  it  or  its  contents,  at  any  time." 

The  above-mentioned  contract  with  the  New  Jersey  Steam 
Navigation  Company  being  about  to  expire,  Harnden  addressed 
letters,  on  the  7th  and  16th  of  December,  to  the  President,  ex- 
pressing a  desire  to  renew  it,  and,  on  the  31st  of  December, 
received  a  letter  from  Mr.  Handy,  the  President,  renewing  the 
contract  for  one  year  from  the  1st  of  January,  1840. 

The  New  Jersey  Company  also  published  the  following  notice  : 

"  Notice  to  Shippers  and  Consignees. 

"  All  goods,  freight,  baggage,  bank  bills,  specie,  or  any  other 
kind  of  property,  taken,  shipped,  or  put  on  board  the  steamers  of 
the  New  Jersey  Steam  Navigation  Company,  must  be  at  the  risk 
of  the  owners  of  such  goods,  freight,  baggage,  &c.  :  and  all 
freight,  consisting  of  goods,  wares,  and  merchandise,  or  any  other 
property  landed  from  the  steamers,  if  not  taken  away  from  the 
wharf  without  delay,  will  be  put  under  cover  at  the  risk  of  the 
owners  of  said  goods,  freight,  baggage,  &c.,  in  all  respects  what- 
soever." 

The  bills  of  lading,  or  receipts  given  by  the  Company,  were  in 
the  following  form  :  — 

"  New  Jersey  Steam  Navigation  Company. 

"  Received  of  on  board  the  steamer 

master 

marked   and  numbered   as  in  the  margin,  to  be  transported   to 

and  there  to  be  delivered  to 
or  assigns,  danger  of  fire,  water,  break- 
age, leakage,  and  all  other  accidents  excepted  ;  and  no  package 


Ivi  APPENDIX. 

whatever,  if  lost,  injured,  or  stolen,  to  be  deemed  of  greater  value 
than  two  hundred  dollars. 

"  Freight  as  customary  with  the  steamers  on  this  line. 

"  N.  B.  The  Company  are  to  be  held  responsible  for  ordinary 
care  and  diligence  only  in  the  transportation  of  merchandise,  and 
other  property,  shipped  or  put  on  board  the  boats  of  this  line. 

"  Dated  at  the  18 

"  (Contents  unknown.) " 

In  January,  1840,  Mr.  Harnden  received  from  the  Merchants' 
Bank  in  Boston  a  large  amount  of  checks  and  drafts  upon  New 
York,  which  he  was  to  collect  in  specie,  and  transmit  the  proceeds 
to  Boston. 

"  On  the  13th  of  January,  1840,  the  sum  of  eighteen  thousand 
dollars,  in  gold  and  silver  coin,  was  shipped  by  William  F.  Harn- 
den, and  received  on  board  of  the  steamboat  Lexington,  said  boat 
being  the  property  of  the  New  Jersey  Steam  Navigation  Company, 
and  employed  in  making  regular  trips  between  New  York  and 
Stonington  in  Connecticut.  The  shipment  was  made  at  New 
York.  The  boat  left  New  York  about  half-past  four  o'clock  in  the 
afternoon,  and  in  the  course  of  a  few  hours  a  fire  broke  out,  which 
totally  destroyed  the  boat,  the  lives  of  nearly  all  the  passengers 
and  crew,  and  the  property  on  board.  The  money,  amongst  the 
other  property,  was  lost.  As  the  circumstances  under  which  the 
loss  took  place  were  much  commented  on  in  the  argument,  it  may 
be  proper  to  insert  the  narrative  of  Stephen  Manchester,  the  pilot, 
who  was  examined  as  a  witness  :  — 

"  To  the  third  interrogatory  he  saith  :  —  She  was  near  Hunting- 
ton  lighthouse,  some  four  miles  east  of  the  light,  and  between 
forty  and  fifty  miles  from  New  York.  It  was  about  half-past  seven 
o'clock  in  the  evening.  I  know  the  hour,  because  we  always  take 
down  on  a  slate  the  hour  that  we  pass  every  lighthouse.  This 
was  the  business  of  the  pilot.  I  was  in  the  wheel-house  when  I 
heard  that  the  boat  was  on  fire.  Some  one  came  to  the  wheel- 
house,  and  told  the  wheel-man  and  myself  that  the  boat  was  on 
fire.  I  stepped  out  of  the  wheel-house  and  went  up  to  the  smoke- 
pipe.  I  saw  the  fire  blazing  up  through  the  promenade  deck, 
around  the  smoke-pipe.  The  promenade  deck  was  on  fire,  and 
was  blazing  up  two  or  three  feet.  I  looked  down  a  scuttle  which 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS5  BANK.     Ivii 

went  through  the  promenade  deck,  and  which  was  about  three  or 
four  feet  on  the  larboard  side,  a  little  abaft  of  the  smoke-pipe ;  it 
was  not  exactly  abreast  of  it  or  abaft  of  it,  but  quartering.  The 
scuttle  led  down  between  the  after  part  of  the  boiler  and  the  for- 
ward part  of  the  engine.  In  looking  through  the  scuttle  I  saw 
blaze  and  smoke,  as  if  she  was  on  fire  there.  I  can't  say  whether 
or  not  the  main  deck  was  on  fire  at  that  time.  I  next  returned  to 
the  wheel-house,  and  hove  the  wheel  hard  over  a-port,  which 
would  sheer  the  boat  to  the  southward,  for  the  purpose  of  running 
the  boat  ashore  to  the  nearest  land,  which  was  Long  Island  shore. 
Just  as  I  got  the  wheel  hove  a-port,  Captain  Childs  came  in  and 
put  his  hand  on  the  spoke  of  the  wheel.  As  he  took  hold  of  the 
wheel,  the  starboard  wheel-rope  gave  way.  Within  an  instant 
from  that  time,  the  smoke  broke  into  the  wheel-house,  so  that  we 
were  obliged  to  leave  it.  Captain  Childs  went  out  of  the  wheel- 
house  and  went  aft,  and  I  did  not  see  any  thing  of  him  after  that. 
I  then  stepped  out,  and  called  to  some  of  our  people  on  the  fore- 
castle to  get  out  the  fire-engine.  They  got  it  out.  I  then  told 
them  to  get  out  the  hose  and  the  fire-buckets.  The  fire  then 
spread  so  between  decks,  that  they  could  not  get  at  the  hose  or 
buckets.  I  then  went  to  the  life-boat,  and  found  some  men  there 
casting  off  the  lashings,  with  which  she  was  fastened  to  the  pro- 
menade deck.  I  caught  hold  of  the  lashings,  and  told  them  not  to 
cast  them  off  till  we  had  attached  a  hawser  to  the  boat.  I  sang 
out  to  some  one  on  the  forecastle  to  pass  up  a  hawser  to  attach  to 
the  boat,  which  was  done.  I  then  told  them  to  take  the  hawser 
attached  to  the  boat,  and  to  fasten  it  to  the  forward  part  of  the 
steamer.  The  fire  then  was  burning  up  through  the  deck  and 
around  the  life-boat,  and  I  cut  the  lashings,  and  told  the  men  to 
throw  the  boat  overboard  ;  I  then  jumped  down  on  to  the  forward 
deck,  caught  hold  of  the  hawser,  and  found  that  it  was  not  made 
fast  to  the  steamboat,  as  directed.  I  found  the  boat  was  getting 
away  from  us,  and  I  sang  out  to  the  people  about  there  to  hang  on 
to  the  hawser,  or  we  should  lose  her.  They  let  go  of  the  hawser, 
one  after  another,  until  they  let  the  boat  go.  The  promenade  deck 
was  at  that  time  all  of  a  blaze  to  the  bulkhead.  It  was  about  fifteen 
or  twenty  minutes  after  I  first  heard  of  the  fire  that  the  life-boat  was 
let  go.  The  life-boat  was  somewhat  burnt  before  she  was  thrown 
over.  The  next  thing  I,  with  the  others  on  the  forecastle  did,  was 


Iviii  APPENDIX. 

to  empty  the  baggage-cars,  and  attach  lines  to  them,  and  throw 
them  overhoard  for  any  one  to  save  himself  that  could.  Some  of 
those  on  the  forecastle  drew  water  with  what  buckets  we  had,  and 
threw  it  on  the  fire.  I  then  took  the  flagstaff  and  another  spar 
that  we  had  knocked  off  the  bulwarks,  and  fastened  them  to  those 
two  spars  to  make  a  raft  to  get  on  to.  I  threw  the  raft  overboard; 
and  several  persons,  some  two  or  three,  got  on  to  it ;  but  it  was 
not  buoyant  enough  to  hold  them  up.  That  was  all  we  could  do, 
excepting  to  throw  water,  which  we  did  as  long  as  we  could. 
The  boat  was  then  nearly  burnt  to  the  water's  edge,  and  the 
forward  deck  was  burnt  and  had  fallen  in.  We  then  got  cornered 
up  so  that  we  had  no  chance  to  throw  water,  and  were  obliged  to 
leave  the  boat  to  burn.  Those  left  on  the  forecastle,  some  eight 
or  ten  in  number,  then  asked  me  what  they  could  do  to  save  them- 
selves. I  then  told  them  that  I  saw  no  chance ;  that  we  had 
done  all  that  we  could  do.  We  then  began  to  get  overboard  ; 
some  hung  on  to  the  crates  at  the  forward  part  of  the  boat,  and 
some  got  on  to  the  guard.  I  got  down  on  to  the  raft  I  have  before 
mentioned.  I  found  it  sinking  under  me,  and  I  lifted  myself  up 
again  by  a  piece  of  rope  which  I  had,  and  which  I  whipped  over  a 
spike.  Then  I  jumped  from  the  raft  on  to  the  piece  of  guard  ; 
and  from  this  guard  I  got  on  to  a  bale  of  cotton.  I  found  a  man 
by  the  name  of  McKinney  on  the  bale.  After  I  had  got  on,  a 
man  standing  on  this  piece  of  guard  asked  if  there  was  room  on 
the  bale  of  cotton  for  another  man.  I  made  him  no  answer.  He 
jumped  to  get  on  to  it,  and  in  doing  so  knocked  off  McKinney. 
I  hauled  McKinney  on  to  the  bale  again,  and  the  man  returned  to 
the  guard.  I  found  the  bale  was  lashed  to  this  piece  of  guard, 
and  I  took  my  knife  and  cut  away  the  lashings  ;  I  took  up  a  piece 
of  board  which  was  floating  by,  and  shoved  the  bale  clear  of  the 
guard,  and  let  it  drift  down  the  Sound  before  the  wind.  McKin- 
ney froze  to  death  about  daylight  the  next  morning,  and  fell  off 
the  bale.  Between  eleven  and  twelve  o'clock  the  next  day,  I  was 
picked  up  by  the  sloop  Merchant,  Captain  Meeker.  When  I  first 
heard  that  the  boat  was  on  fire,  I  had  been  in  the  wheel-house, 
after  taking  my  tea,  for  about  twenty-five  or  thirty  minutes." 

On  the   10th  of  February,  1842,  the  Merchants'  Bank  filed  a 
libel  in  the  District  Court  of  the  United  States  for  the  District  of 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS*  BANK.    llX 

Rhode  Island,  against  the  New  Jersey  Steam  Navigation  Company, 
as  the  owners  of  the  Lexington,  for  "  a  cause  of  bailment,  civil  and 
maritime."  As  the  libel  is  not  long,  and  the  circumstances  of  this 
case  are  peculiar,  it  is  deemed  proper  to  insert  it. 

"  To  the  Honorable  John  Pitman,  Judge  of  the  District  Court  of 

the  United  States,  within  and  for  the  District  of  Rhode  Island. 

"  The  libel  and  complaint  of  the  President,  Directors,  and  Com- 
pany of  the  Merchants'  Bank  of  Boston,  a  corporation  incorporated 
by  the  legislature  of  the  Commonwealth  of  Massachusetts,  against 
the  New  Jersey  Steam  Navigation  Company,  a  corporation  incor- 
porated by  the  legislature  of  the  State  of  New  Jersey,  owners  of 
the  steamboat  Lexington,  for  a  cause  of  bailment,  civil  and  maritime  : 

"  And  thereupon  the  said  President,  Directors,  and  Company  of 
the  Merchants'  Bank  of  Boston  do  allege  and  articulately  propound 
as  follows :  — 

"  First.  That  the  respondents,  in  the  month  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  forty,  were  com- 
mon carriers  of  merchandise  on  the  high  seas  from  the  city  of  New 
York,  in  the  State  of  New  York,  to  Stonington,  in  the  State  of 
Connecticut,  and  were  then  owners  of  the  steamboat  Lexington, 
then  lying  at  the  port  of  New  York,  in  the  State  of  New  York,  and 
which  vessel  was  then  used  by  the  respondents  as  common  carriers, 
as  aforesaid,  for  the  transportation  of  goods,  wares,  and  merchandise 
on  the  high  seas  from  the  said  port  of  New  York  to  the  said  port  of 
Stonington,  in  the  State  of  Connecticut. 

u  Second.  That  the  complainants,  on  the  high  seas,  and  within 
the  ebb  and  flow  of  the  tide,  and  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States  and  of  this  Court,  on  the  thirteenth 
day  of  January,  A.  D.  1840,  contracted  with  the  respondents  for 
the  transportation,  by  water,  on  board  of  the  said  steamboat  Lex- 
ington, from  the  said  port  of  New  York  to  the  said  port  of  Stoning- 
ton, of  certain  gold  coin,  amounting  to  fourteen  thousand  dollars, 
and  of  certain  silver  coin,  amounting  to  eleven  thousand  dollars,  to 
the  libellants  belonging ;  and  the  said  respondents  then  and  there, 
for  a  reasonable  hire  and  reward,  to  be  paid  by  the  libellants  there- 
for, contracted  with  the  libellants  that  they  would  receive  said  gold 
coin  and  silver  coin  on  board  of  the  said  steamboat  Lexington,  and 
transport  the  same  therein  on  the  high  seas  from  the  said  New  York 
to  said  Stonington,  and  safely  deliver  the  same  to  the  libellants. 


k  APPENDIX. 

"  Third.  That  the  libellants,  on  the  said  thirteenth  day  of 
January,  A.  D.  1840,  at  said  New  York,  delivered  to  the  said 
respondents  on  board  of  the  said  steamboat  Lexington,  then  lying 
at  said  New  York,  and  within  the  ebb  and  flow  of  the  tide,  and 
within  the  admiralty  and  maritime  jurisdiction  of  the  United  States 
and  of  this  Court ;  and  the  respondents  then  and  there  received  on 
board  of  said  steamboat,  the  said  gold  coin  and  silver  coin,  for  the 
purpose  of  transportiug  the  same  by  water  on  the  high  seas  from 
said  New  York  to  said  Stonington,  and  to  deliver  the  same  to  the 
libellants  as  aforesaid. 

"  Fourth.  That  the  steamboat  Lexington  sailed  from  said  port 
of  New  York,  with  the  said  gold  coin  and  silver  coin  on  board,  on 
said  thirteenth  day  of  January,  A.  D.  1840,  and  bound  to  said  port 
of  Stonington  ;  yet  the  respondents,  their  officers,  servants,  and 
agents,  so  carelessly  and  improperly  stowed  the  said  gold  coin  and 
silver  coin,  and  the  engine,  furnace,  machinery,  furniture,  rigging, 
and  equipments  of  the  said  steamboat  were  so  imperfect  and  insuffi- 
cient, and  the  said  respondents,  their  officers,  servants,  and  agents, 
so  carelessly,  improperly,  and  negligently  managed  and  conducted 
the  said  steamboat  Lexington  during  her  said  voyage,  that,  by  rea- 
son of  such  improper  stowage,  imperfect  and  insufficient  engine, 
furnace,  machinery,  furniture,  rigging,  and  equipments,  and  of  such 
careless,  improper,  and  negligent  conduct,  the  said  steamboat, 
together  with  the  said  gold  coin  and  silver  coin  to  the  libellants 
belonging,  were  destroyed  by  fire  on  the  high  seas,  and  wholly 
lost. 

"  Fifth.  That  by  reason  of  the  destruction  of  the  said  steam- 
boat Lexington,  and  of  the  said  gold  coin  and  silver  coin,  the 
libellants  have  sustained  damage  to  the  amount  of  twenty-five 
thousand  dollars. 

"Sixth.  That  the  said  New  Jersey  Steam  Navigation  Company 
are  possessed  of  certain  personal  property  within  the  said  Rhode 
Island  district,  and  within  the  ebb  and  flow  of  the  sea,  and  within 
the  maritime  and  admiralty  jurisdiction  of  this  Court,  to  wit,  of  the 
steamboat  called  the  Massachusetts,  her  tackle,  apparel,  furniture, 
and  appurtenances,  and  of  other  personal  property. 

"  Seventh.  That  all  and  singular  the  premises  are  true,  and 
within  the  admiralty  and  maritime  jurisdiction  of  this  Court ;  in 
verification  whereof,  if  denied,  the  libellants  crave  leave  to  refer  to 
the  depositions  and  other  proof  to  be  by  them  exhibited  in  the  cause. 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK.    Ld 

Wherefore,  the  libellants  pray  that  process,  in  due  form  of  law  ac- 
cording to  the  course  of  admiralty  and  of  this  Court  in  causes  of 
admiralty  and  maritime  jurisdiction,  may  issue  against  the  respond- 
ents, and  against  the  said  steamboat  Massachusetts,  her  tackle, 
apparel,  furniture,  and  appurtenances,  or  any  other  property  to  the 
respondents  belonging  within  the  said  Rhode  Island  district;  and 
that  the  said  property,  or  any  part  thereof,  may  be  attached  and 
held  to  enforce  the  appearance  of  the  respondents  in  this  Court,  to 
answer  the  matters  so  articulately  propounded,  and  to  answer  the 
damages  which  may  be  awarded  to  the  libellants  for  the  causes 
aforesaid  ;  and  that  this  Court  would  be  pleased  to  pronounce  for 
the  damages  aforesaid,  and  to  decree  such  damages  to  the  libellante 
as  shall  to  law  and  justice  appertain." 

On  the  same  day,  a  monition  and  attachment  were  issued, 
directing  the  steamboat  Massachusetts,  her  tackle,  apparel,  furni- 
ture, and  appurtenances,  or  any  other  property  to  the  respondents 
belonging,  within  the  Rhode  Island  district,  to  be  attached.  All  of 
which  was  done. 

In  May,  1842,  the  respondents  filed  their  answer,  which  is  too 
long  to  be  inserted.  The  substance  of  it  was  :  — 

1st.  They  admitted  the  ownership  of  the  Lexington,  and  her 
being  used  for  the  transportation  of  passengers,  goods,  wares,  and 
merchandise  between  New  York  and  Stonington. 

2d.  They  denied  any  contract  whatever  with  the  libellants. 

3d.  They  denied  that  the  libellants  ever  shipped,  or  that  the 
respondents  received  from  the  libellants,  any  gold  and  silver  coin 
whatever. 

4th.  They  asserted  that  whatever  goods  were  received  on  board 
the  Lexington  were  received  under  the  advertisements  and  notices 
mentioned  in  a  previous  part  of  this  statement. 

5th.  That  the  usage  and  custom  of  the  company  was  to  be  held 
responsible  for  ordinary  care  and  diligence  only  ;  and  that  this 
usage,  being  well  know  to  the  libellants,  constituted  a  part  of  the 
contract  of  shipment. 

6th.  That  the  bill  of  lading,  heretofore  mentioned,  was  a  copy  of 
all  the  bills  of  lading  given  by  the  company,  which  was  well  known 
to  the  libellants. 

7th.  That  the  notice  above  mentioned  was  posted  up  on  board 


kii  APPENDIX. 

the  steamboat,  and  on  the  wharf,  and  in  the  office  of  the  company, 
of  which  facts  the  libellants  were  informed. 

8th.  That  the  Lexington  was  accidentally  destroyed  by  fire. 

9th.  They  denied  that  the  cotton  was  improperly  stowed ;  that 
the  engine,  machinery,  &c.  were  imperfect  and  insufficient ;  that 
the  officers  carelessly,  improperly,  or  negligently  managed  the 
boat ;  or  that  by  reason  of  these  things  the  boat  was  lost.  The 
contrary  of  all  these  things  was  averred  ;  and  they  further  averred, 
that  they  had  complied  with  the  requisitions  of  the  act  of  Congress 
passed  on  the  7th  of  July,  1838. 

In  verification  of  this  last  averment,  they  filed  the  inspection 
certificate,  dated  on  September  23d,  1839. 

On  the  18th  of  October,  1842,  the  District  Court  pronounced  a 
pro  forma  decree,  dismissing  the  libel  with  costs,  from  which  an 
appeal  was  taken  to  the  Circuit  Court. 

Under  the  authority  of  the  Circuit  Court,  commissions  to  take 
testimony  were  issued,  under  which  a  vast  mass  of  evidence  was 
taken  on  both  sides. 

The  libellants  offered  evidence  to  prove  the  following  positions : 
That  the  furnaces  were  unsafe  and  insufficient ;  that  there  was  no 
proper  casing  to  the  steam-chimney,  nor  any  safe  lining  of  the  deck 
where  the  chimney  passed  through  ;  that  dry  pine  wood  was  habitu- 
ally kept  in  a  very  exposed  situation ;  that  especially,  there  was  a 
very  improper  stowage  or  disposition  of  the  cargo  on  board,  consid- 
ering what  that  cargo  was  ;  that  the  boat  had  no  tiller  chain  or  rope, 
such  as  the  act  of  Congress,  as  well  as  common  prudence,  required  ; 
that  there  were  on  board  no  fire-buckets,  properly  prepared  and 
fitted  with  heaving-lines  ;  that  the  fire-engine  was  in  one  part  of 
the  boat,  while  the  hose  belonging  to  it  was  kept  or  left  in  another, 
and  where  it  was  inaccessible  when  the  fire  broke  out;  and  that  in 
other  respects  the  respondents  were  guilty  of  negligence  the  more 
culpable,  as  the  same  boat  had  actually  taken  fire  in  her  last  pre- 
ceding voyage,  and  no  measure  of  caution  had  been  taken  to  pre- 
vent a  recurrence  of  the  accident. 

The  respondents,  on  the  contrary,  offered  evidence  to  rebut  that 
adduced  in  support  of  the  above,  and  particularly  that  the  boat, 
hull,  engine,  boiler,  and  general  equipment  were  good  ;  that  the 
most  experienced  men  had  been  employed,  without  regard  to 
expense,  in  putting  her  into  complete  order  ;  that  she  had  a  cap- 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK,    bail 

tain,  pilot,  and  crew  equal  to  all  ordinary  occasions,  and  that 
respondents  were  not  liable  if  they  did  not  prove  fit  for  emergen- 
cies which  might  appall  the  stoutest ;  that  the  boat  was  well  found 
in  tool -chests ;  that  there  were  on  board  a  suction-hose,  fire-engine, 
and  hose,  as  required  by  the  act  of  Congress ;  that  they  were 
stowed  in  a  proper  place  ;  that  sufficient  reasons  were  shown  why 
they  were  not  available  at  the  fire  ;  that  there  were  three  dozen  and 
a  half  of  fire-buckets  on  board  ;  that  the  steering  apparatus  was 
good  ;  that  the  loss  of  the  boat  did  not  result  from  her  not  having 
"  iron  rods  and  chains  "  instead  of  wheel  or  tiller  ropes  ;  "  that 
the  parting  of  the  wheel-ropes,  if  occasioned  by  the  fire,  did  not 
contribute  at  all  to  her  loss. 

At  November  term,  1843,  the  cause  came  on  to  be  heard  before 
the  Circuit  Court,  when  the  Court  pronounced  the  following  decree  : 

"  This  cause  came  on  to  be  heard  upon  the  libel,  the  answer  of 
the  respondents,  and  testimony  in  the  case.  The  respondents 
submitted  to  a  decree. 

"  Whereupon  it  is  ordered,  adjudged,  and  decreed,  that  the  said 
libellants  have  and  recover  of  the  said  respondents  the  sum  of 
twenty-two  thousand  two  hundred  and  twenty-four  dollars,  and 
costs  of  suit,  and  that  execution  issue  therefor  according  to  the 
course  of  the  Court." 

An  appeal  from  this  decree  brought  the  case  up  to  this  Court 

The  Reporter  understands  that  Mr.  Chief  Justice  Taney,  Mr. 
Justice  McLean,  and  Mr.  Justice  Wayne,  concurred  in  the  follow- 
ing opinion. 

MR.  JUSTICE  NELSON.  —  This  is  an  appeal  from  the  Circuit 
Court  of  the  United  States,  held  in  and  for  the  District  of  Rhode 
Island,  in  a  suit  originally  commenced  in  the  District  Court  in 
Admiralty,  and  in  which  the  Merchants'  Bank  of  Boston  were  the 
libellants,  and  the  New  Jersey  Steam  Navigation  Company  the 
respondents. 

The  suit  was  instituted  upon  a  contract  of  affreightment,  for  the 
purpose  of  recovering  a  large  amount  of  specie  lost  in  the  Lexing- 
ton, one  of  the  steamers  of  the  respondents  running  between  New 
York  and  Providence,  which  took  fire  and  was  consumed,  on  the 
night  of  the  13th  of  January,  1840,  on  Long  Island  Sound,  about 


APPENDIX. 

four  miles  off  Huntington  lighthouse,  and  between  forty  and  fifty 
miles  from  the  former  city. 

The  District  Court  dismissed  the  libel  pro  forma,  and  entered 
a  decree  accordingly.  An  appeal  was  taken  to  the  Circuit  Court, 
where  this  decree  of  dismissal  was  reversed,  and  a  decree  entered 
for  the  libellants  for  the  sum  of  $22,224,  with  costs  of  suit. 

The  case  is  now  before  this  Court  for  review. 

William  F.  Harnden,  a  resident  of  Boston,  was  engaged  in  the 
business  of  carrying  for  hire  small  packages  of  goods,  specie,  and 
bundles  of  all  kinds,  daily,  for  any  persons  choosing  to  employ 
him,  to  and  from  the  cities  of  Boston  and  New  York,  using  the 
public  conveyances  between  these  cities  as  the  mode  of  transpor- 
tation. For  this  purpose,  he  had  entered  into  an  agreement  with 
the  respondents  on  the  5th  of  August,  1839,  by  which,  in  consid- 
eration of  $250  per  month,  to  be  paid  monthly,  they  agreed  to 
allow  him  the  privilege  of  transporting  in  their  steamers  between 
New  York  and  Providence  a  wooden  crate  of  the  dimensions  of 
five  feet  by  five  feet  in  width  and  height,  and  six  feet  in  length, 
(contents  unknown,)  until  the  31st  of  December  following,  subject 
to  these  conditions :  — 

1.  The  crate  with  its  contents  to  be  at  all  times  exclusively  at  the 
risk  of  the  said  Harnden,  and  the  respondents  not  in  any  event  to 
be  responsible,  either  to  him  or  his  employers,  for  the  loss  of  any 
goods,  wares,  merchandise,  money,  &c.,  to  be  conveyed  or  trans- 
ported by  him  in  said  crate,  or  otherwise  in  the  boats  of  said  com- 
pany. 

2.  That  he  should  annex  to  his  advertisements  published  in  the 
public   prints,  the   following  notice,  and  which   was,  also,  to   be 
annexed  to  his  receipts  of  goods  or  bills  of  lading :  — 

"Take  notice.  —  William  F.  Harnden  is  alone  responsible  for 
the  loss  or  injury  of  any  articles  or  property  committed  to  his 
care  ;  nor  is  any  risk  assumed  by,  nor  can  any  be  attached  to,  the 
proprietors  of  the  steamboats  in  which  his  crate  may  be  and  is 
transported,  in  respect  to  it  or  its  contents,  at  any  time." 

This  arrangement  expired  on  the  31st  December,  1839,  but  was 
on  that  day  renewed  for  another  year,  and  was  in  existence  at  the 
time  of  the  loss  in  question. 

A  few  days  previous  to  the  loss  of  the  Lexington,  the  libellants 
employed  Harnden  in  Boston  to  collect  from  the  banks  in  the  city 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS5  BANK,  kv 

of  New  York  checks  and  drafts  to  the  amount  of  about  $46,000, 
which  paper  was  received  by  him  and  forwarded  to  his  agent  in 
that  city,  with  directions  to  collect  and  send  home  the  same  in  the 
usual  way.  Eighteen  thousand  dollars  of  this  sum  was  put  in  the 
crate  on  board  of  that  vessel  on  the  13th  of  January,  for  the  pur- 
pose of  being  conveyed  to  the  libellants,  and  was  on  board  at  the 
time  she  was  lost,  on  the  evening  of  that  day. 

Upon  this  statement  of  the  case,  three  objections  have  been 
taken  by  the  respondents  to  the  right  of  the  libellants  to  recover : 

1.  That  the  suit  is  not  maintainable  in  their  names.     That,  if 
accountable  at  all  for  the  loss,  they  are  accountable  to  Harnden, 
with  whom  the  contract  for  carrying  the  specie  was  made. 

2.  That  if  the  suit  can  be  maintained  in  the  name  of  the  libel- 
lants,  they   must   succeed,   if  at  all,  through   the   contract   with 
Harnden,  which  contract  exempts  them  from  all  responsibility  as 
carriers  of  the  specie  ;  and, 

3.  That  the  District  Court  had  no  jurisdiction,  the  contract  of 
affreightment  not  being  the  subject  of  admiralty  cognizance. 

We  shall  examine  these  several  objections  in  their  order. 

I.  As  to  the  right  of  the  libellants  to  maintain  the  suit. 

They  had  employed  Harnden  to  collect  checks  and  drafts  on 
the  banks  in  the  city  of  New  York,  and  to  bring  home  the  pro- 
ceeds in  specie.  He  had  no  interest  in  the  money,  or  in  the 
contract  with  the  respondents  for  its  conveyance,  except  what  was 
derived  from  the  possession  in  the  execution  of  his  agency.  The 
general  property  remained  in  the  libellants,  the  real  owners,  subject 
at  all  times  to  their  direction  and  control ;  and  any  loss  that  might 
happen  to  it  in  the  course  of  the  shipment,  would  fall  upon  them. 

This  would  be  clearly  so  if  Harnden  is  to  be  regarded  as  a 
private  agent ;  and  even  if  in  the  light  of  a  common  carrier  of  this 
description  of  goods,  the  result  would  not  be  changed,  so  far  as 
relates  to  the  right  of  property. 

The  carrier  has  a  lien  on  the  goods  for  his  freight,  if  not  paid 
in  advance ;  but  subject  to  this  claim  he  can  set  up  no  right  of 
property  or  of*  possession  against  the  general  owners.  (Story  on 
Bailments,  §  93  g.) 

The  carrier,  says  Buller,  J.,  is  considered  in  law  the  agent  or 
servant  of  the  owner,  and  the  possession  of  the  agent  is  the  pos- 
session of  the  owner.  (4  T.  R.  490.) 


kvi  APPENDIX. 

Under  these  circumstances,  the  contract  between  Harnden  and 
the  respondents  for  the  transportation  of  the  specie  was,  in  con- 
templation of  law,  a  contract  between  them  and  the  libellants ; 
and  although  made  in  his  own  name,  and  without  disclosing  his 
employers  at  the  time,  a  suit  may  be  maintained  directly  upon  it 
in  their  names. 

It  would  be  otherwise,  in  a  court  of  law,  if  the  contract  was 
under  seal.  (Story  on  Agency,  §  160.) 

It  rested  in  parol,  in  this  case,  at  the  time  of  the  loss. 

In  Sims  v.  Bond,  5  Barn.  &  Adol.  393,  the  Court  observed  that 
it  was  a  well  established  rule  of  law,  that,  where  a  contract,  not 
under  seal,  is  made  by  an  agent  in  his  own  name  for  an  undis- 
closed principal,  either  the  agent  or  the  principal  may  sue  on  it ; 
the  defendant  in  the  latter  case  being  entitled  to  be  placed  in  the 
same  situation,  at  the  time  of  the  disclosure  of  the  real  principal, 
as  if  the  agent  had  been  the  contracting  party. 

The  same  doctrine  is  affirmed  by  Baron  Parke,  in  delivering 
the  judgment  of  the  Court  in  Higgins  v.  Senior,  8  Mees.  &  Wels. 
834,  844,  in  the  Court  of  Exchequer.  In  that  case,  it  was  held 
that  the  suit  might  be  maintained  on  the  contract,  either  in  the 
name  of  the  principal  or  of  the  agent,  and  that,  too,  although 
required  to  be  in  writing  by  the  statute  of  frauds. 

The  rule  is,  also,  equally  well  established  in  this  country,  as 
may  be  seen  by  a  reference  to  the  cases  of  Beebee  v.  Robert,  12 
Wend.  413;  Taintor  v.  Prendergast,  3  Hill,  72;  and  Sanderson 
v.  Lamberton,  6  Binney,  129. 

The  last  case  is  like  the  one  before  us.  It  was  an  action  by 
the  owners  directly  upon  the  sub-contract  made  by  the  first  with 
the  second  carrier  for  the  conveyance  of  the  goods,  in  whose 
hands  they  were  lost. 

The  cases  are  numerous  in  which  the  general  owner  has  sus- 
tained an  action  of  tort  against  the  wrongdoer  for  injuries  to  the 
property  while  in  the  hands  of  the  bailee.  The  above  cases  show  • 
that  it  may  be  equally  well  sustained  for  a  breach  of  contract 
entered  into  between  the  bailee  and  a  third  persdh.  The  Court 
look  to  the  substantial  parties  in  interest,  with  a  view  to  avoid 
circuity  of  action  ;  saving,  at  the  same  time,  to  the  defendant  all 
the  rights  belonging  to  him  if  the  suit  had  been  in  the  name  of  the 
agent. 


NEW  JERSEY  STEAM  NAVIGATION  CO,  V.  MERCHANTS*  BANK.  Ixvii 

We  think,  therefore,  that  the  action  was  properly  brought  in  the 
name  of  the  libellants. 

TI.  The  next  question  is  as  to  the  duties  and  liabilities  of  the 
respondents,  as  carriers,  upon  their  contract  with  Harnden.  As 
the  libellants  claim  through  it,  they  must  affirm  its  provisions,  so 
far  as  they  may  be  consistent  with  law. 

The  general  liability  of  the  carrier,  independently  of  any 
special  agreement,  is  familiar.  He  is  chargeable  as  an  insurer 
of  the  goods,  and  accountable  for  any  damage  or  loss  that  may 
happen  to  them  in  the  course  of  the  conveyance,  unless  arising 
from  inevitable  accident, —  in  other  words,  the  act  of  God  or  the 
public  enemy.  The  liability  of  the  respondents,  therefore,  would 
be  undoubted,  were  it  not  for  the  special  agreement  under  which 
the  goods  were  shipped. 

The  question  is,  to  what  extent  has  this  agreement  qualified  the 
common  law  liability  ? 

We  lay  out  of  the  case  the  notices  published  by  the  respondents, 
seeking  to  limit  their  responsibility,  because,  — 

1.  The  carrier  cannot  in  this  way  exonerate  himself  from  duties 
which  the  law  has  annexed  to  his  employment ;  and, 

2.  The  special   agreement  with  Harnden  is  quite  as  compre- 
hensive in  restricting  the  obligation  as  any  of  the  published  notices. 

A  question  has  been  made,  whether  it  is  competent  for  the  car- 
rier to  restrict  his  obligation  even  by  a  special  agreement.  It  was 
very  fully  considered  in  the  case  of  Gould  and  others  ».  Hill  and 
others,  2  Hill,  623,  and  the  conclusion  arrived  at  that  he  could  not. 
See  also  Hollister  v.  Nowlen,  19  Wend.  240  ;  and  Cole  ».  Good- 
win, Ibid.  272,  282. 

As  the  extraordinary  duties  annexed  to  his  employment  concern 
only,  in  the  particular  instance,  the  parties  to  the  transaction, 
involving  simply  rights  of  property,  —  the  safe  custody  and  deliv- 
ery of  the  goods,  —  we  are  unable  to  perceive  any  well  founded 
objection  to  the  restriction,  or  any  stronger  reasons  forbidding  it 
than  exist  in  the  case  of  any  other  insurer  of  goods,  to  which 
his  obligation  is  analogous ;  and  which  depends  altogether  upon 
the  contract  between  the  parties. 

The  owner,  by  entering  into  the  contract,  virtually  agrees, 
that,  in  respect  to  the  particular  transaction,  the  carrier  is  not  to 
be  regarded  as  in  the  exercise  of  his  public  employment ;  but 


Ixviii  APPEXDIX. 

as  a  private  person,  who  incurs  no  responsibility  beyond  that  of  an 
ordinary  bailee  for  hire,  and  answerable  only  for  misconduct  or 
negligence. 

The  right  thus  to  restrict  the  obligation  is  admitted  in  a  large 
class  of  cases  founded  on  bills  of  lading  and  charter-parties, 
where  the  exception  to  the  Common  Law  liability  (other  than  that 
of  inevitable  accident)  has  been,  from  time  to  time,  enlarged,  and 
the  risk  diminished,  by  the  express  stipulation  of  the  parties.  The 
right  of  the  carrier  thus  to  limit  his  liability  in  the  shipment  of 
goods  has,  we  think,  never  been  doubted. 

But  admitting  the  right  thus  to  restrict  his  obligation,  it  by  no 
means  follows  that  he  can  do  so  by  any  act  of  his  own.  He  is  in 
the  exercise  of  a  sort  of  public  office,  and  has  public  duties  to  per- 
form, from  which  he  should  not  be  permitted  to  exonerate  himself 
without  the  assent  of  the  parties  concerned.  And  this  is  not  to  be 
implied  or  inferred  from  a  general  notice  to  the  public,  limiting  his 
obligation,  which  may  or  may  not  be  assented  to.  He  is  bound  to 
receive  and  carry  all  the  goods  offered  for  transportation,  subject  to 
all  the  responsibilities  incident  to  his  employment,  and  is  liable  to 
an  action  in  case  of  refusal.  And  we  agree  with  the  Court  in  the 
case  of  Hollister  v.  Nowlen,  that,  if  any  implication  is  to  be  in- 
dulged from  the  delivery  of  the  goods  under  the  general  notice,  it 
is  as  strong  that  the  owner  intended  to  insist  upon  his  rights,  and 
the  duties  of  the  carrier,  as  it  is  that  he  assented  to  their  qualfi- 
cation. 

The  burden  of  proof  lies  on  the  carrier,  and  nothing  short  of 
an  express  stipulation  by  parol  or  in  writing  should  be  permitted 
to  discharge  him  from  duties  which  the  law  has  annexed  to  his 
employment.  The  exemption  from  these  duties  should  not  depend 
upon  implication  or  inference,  founded  on  doubtful  and  conflicting 
evidence  ;  but  should  be  specific  and  certain,  leaving  no  room  for 
controversy  between  the  parties. 

The  special  agreement,  in  this  case,  under  which  the  goods  were 
shipped,  provided  that  they  should  be  conveyed  at  the  risk  of  Harn- 
den  ;  and  that  the  respondents  were  not  to  be  accountable  to  him  or 
to  his  employers,  in  any  event,  for  loss  or  damage. 

The  language  is  general  and  broad,  and  might  very  well  com- 
prehend every  description  of  risk  incident  to  the  shipment.  But 
we  think  it  would  be  going  farther  than  the  intent  of  the  parties, 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK. 


upon  any  fair  and  reasonable  construction  of  the  agreement,  were 
we  to  regard  it  as  stipulating  for  wilful  misconduct,  gross  negli- 
gence, or  want  of  ordinary  care,  either  in  the  seaworthiness  of  the 
vessel,  her  proper  equipments  and  furniture,  or  in  her  management 
by  the  master  and  hands. 

This  is  the  utmost  effect  that  was  given  to  a  general  notice,  both 
in  England  and  in  this  country,  when  allowed  to  restrict  the  car- 
rier's liability,  although  as  broad  and  absolute  in  its  terms  as  the 
special  agreement  before  us  (Story  on  Bailm.  §  570)  ;  nor  was  it 
allowed  to  exempt  him  from  accountability  for  losses  occasioned  by 
a  defect  in  the  vehicle,  or  mode  of  conveyance  used  in  the  trans- 
portation. (13  Wend.  611,  627,  628.) 

Although  he  was  allowed  to  exempt  himself  from  losses  arising 
out  of  events  and  accidents  against  which  he  was  a  sort  of  insurer, 
yet,  inasmuch  as  he  had  undertaken  to  carry  the  goods  from  one 
place  to  another,  he  was  deemed  to  have  incurred  the  same  degree 
of  responsibility  as  that  which  attaches  to  a  private  person,  engaged 
casually  in  the  like  occupation,  and  was,  therefore,  bound  to  use 
ordinary  care  in  the  custody  of  the  goods,  and  in  their  delivery, 
and  to  provide  proper  vehicles  and  means  of  conveyance  for  their 
transportation. 

This  rule,  we  think,  should  govern  the  construction  of  the 
agreement  in  question. 

If  it  is  competent  at  all  for  the  carrier  to  stipulate  for  the  gross 
negligence  of  himself,  and  his  servants  or  agents,  in  the  transporta- 
tion of  the  goods,  it  should  be  required  to  be  done,  at  least,  in  terms 
that  would  leave  no  doubt  as  to  the  meaning  of  the  parties. 

The  respondents  having  succeeded  in  restricting  their  liability  as 
carriers,  by  the  special  agreement,  the  burden  of  proving  that  the 
loss  was  occasioned  by  the  want  of  due  care,  or  by  gross  negligence, 
lies  on  the  libellants,  which  would  be  otherwise  in  the  absence  of 
any  such  restriction.  We  have  accordingly  looked  into  the  proofs 
in  the  case,  with  a  view  to  the  question. 

There  were  on  board  the  vessel  one  hundred  and  fifty  bales  of 
cotton,  part  of  which  was  stowed  away  on  and  alongside  of  the 
boiler-deck,  and  around  the  steam-chimney,  extending  to  within  a 
foot  or  a  foot  and  a  half  of  the  casing  of  the  same,  which  was 
made  of  pine,  and  was  itself  but  a  few  inches  from  the  chimney. 
The  cotton  around  the  chimney  extended  from  the  boiler  to  within 
a  foot  of  the  upper  deck. 


1XX  APPENDIX. 

The  fire  broke  out  in  the  cotton  next  the  steam-chimney,  between 
the  two  decks,  at  about  half-past  seven  o'clock  in  the  evening,  and 
was  discovered  before  it  had  made  much  progress.  If  the  vessel 
had  been  stopped,  a  few  buckets  of  water,  in  all  probability,  would 
have  extinguished  it.  No  effort  seems  to  have  been  made  to  stop 
her,  but,  instead  thereof,  the  wheel  was  put  hard  a-port,  for  the 
purpose  of  heading  her  to  the  land.  In  this  act,  one  of  the  wheel- 
ropes  parted,  being  either  burnt  or  broken,  in  consequence  of  which 
the  hands  had  no  longer  any  control  of  the  boat. 

Some  of  them  then  resorted  to  the  fire-engine,  but  it  was  found 
to  be  stowed  away  in  one  place  in  the  vessel,  and  the  hose  belong- 
ing to  it,  and  without  which  it  was  useless,  in  another,  and  which 
was  inaccessible  in  consequence  of  the  fire. 

They  then  sought  the  fire-buckets.  Two  or  three  only,  in  all, 
could  be  found,  and  but  one  of  them  properly  prepared  and  fitted 
with  heaving-lines  ;  and,  in  the  emergency,  the  specie  boxes  were 
emptied  and  used  to  carry  water. 

The  act  of  Congress  (5  Statutes  at  Large,  306,  §  9)  made  it  the 
duty,  at  the  time,  of  these  respondents  to  provide,  as  a  part  of  the 
necessary  furniture  of  the  vessel,  a  suction  hose  and  fire-engine, 
and  hose  suitable  to  be  worked  in  case  of  fire,  and  to  carry  the 
same  on  every  trip,  in  good  order  ;  and  further  provided,  that  iron 
rods  or  chains  should  be  employed  and  used  in  the  navigation  of 
steamboats,  instead  of  wheel  or  tiller  ropes. 

This  latter  provision  was  wholly  disregarded  on  board  the  vessel 
during  the  trip  in  question  ;  and  the  former  also,  as  we  have  seen, 
for  all  practical  or  useful  purposes. 

We  think  there  was  great  want  of  care,  and  which  amounted  to 
gross  negligence,  on  the  part  of  the  respondents,  in  the  stowage  of 
the  cotton ;  especially,  regarding  its  exposure  to  fire  from  the  con- 
dition of  the  covering  of  the  boiler-deck,  and  the  casing  of  the 
steam-chimney.  The  former  had  been  on  fire  on  the  previous  trip, 
and  a  box  of  goods  partly  consumed.  Also,  for  the  want  of  proper 
furniture  and  equipments  of  the  vessel,  as  required  by  the  act  of 
Congress,  as  well  as  by  the  most  prudential  considerations. 

It  is,  indeed,  difficult,  on  studying  the  facts,  to  resist  the  con- 
clusion, that,  if  there  had  been  no  fault  on  board  in  the  particulars 
mentioned,  and  the  emergency  had  been  met  by  the  officers  and 
crew  with  ordinary  firmness  and  deliberation,  the  terrible  calamity 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK.  Ixxi 

that  befell  the  vessel  and  nearly  all  on  board,  would  have  been 
arrested. 

We  are  of  opinion,  therefore,  that  the  respondents  are  liable  for 
the  loss  of  the  specie,  notwithstanding  the  special  agreement  under 
which  it  was  shipped. 

Mr.  Justice  CATEON.  —  1.  In  my  judgment,  the  New  Jersey 
Steam  Navigation  Company  were  entitled  to  all  the  benefits  of 
Harnden's  contract  with  them,  in  regard  to  the  property  of  others 
with  which  he  (Harnden)  was  intrusted,  for  the  purpose  of  trans- 
porting it  in  his  crate.  And  though  the  company  can  rely  on  all 
the  defences  which  they  could  have  relied  upon  if  Harnden  had 
sued  them,  still  I  think  the  libellants  can  maintain  this  suit. 

Had  a  trover  and  conversion  been  made  of  the  money  sued  for, 
or  an  open  trespass  been  committed  on  it  by  throwing  it  overboard, 
by  the  servants  or  agents  of  the  company,  then  either  Harnden, 
the  bailee  of  the  bank,  might  have  sued  the  company,  or  the  bank 
might  have  sued.  As  to  the  right  to  sue,  in  the  case  put,  by  the 
bank,  there  can  be  no  doubt ;  as  such  acts  were  never  contem- 
plated by  the  contract,  nor  covered  by  it. 

The  Navigation  Company  were  responsible  to  Harnden  (and  to 
those  who  employed  him,)  notwithstanding  the  contract,  for  acts 
of  gross  negligence  in  transporting  the  property  destroyed  ;  as,  for 
instance,  if  the  servants  of  the  company,  in  navigating  the  vessel, 
omitted  to  observe  even  slight  diligence,  and  failed  in  the  lowest 
degree  of  prudence,  to  guard  against  fire,  then  they  must  be 
deemed  in  a  court  of  justice  to  have  been  guilty  of  gross  negli- 
gence ;  by  which  expression  I  mean,  that  they  acted  reckless  of 
consequences,  as  respected  the  safety  of  the  vessel  and  the  lives 
and  property  on  board  and  in  their  charge,  that  such  conduct  was 
contrary  to  common  honesty,  and  that  the  master  and  owners  were 
liable  for  loss  by  reason  of  such  recklessness  ;  as  they  would  have 
been  in  case  of  an  affirmative  and  meditated  fraud  that  had  occa- 
sioned the  same  loss,  and  that  this  burning  was  a  tort. 

Whether  it  is  evidence  of  fraud  in  fact,  as  Sir  William  Jones 
intimates,  or  whether  it  is  not,  as  other  writers  on  bailments  de- 
clare, is  not  worthy  of  discussion.  The  question  is  this.  Is  the 
measure  of  liability  the  same  where  a  ship  is  burned,  because  the 
master  and  crew  did  not  observe  the  lowest  degree  of  prudence  to 


Ixxii  APPENDIX. 

prevent  it,  and  in  a  case  where  she  is  wilfully  burned  ?  This  is 
the  question  for  our  consideration.  In  the  Civil  Law,  I  apprehend 
no  distinction  in  the  cases  put  exists  ;  nor  do  I  believe  any  exists 
at  Common  Law.  But  by  the  laws  of  the  United  States,  such  gross 
and  reckless  negligence  as  that  proved  in  the  case  before  us,  was 
a  fraud  and  a  tort  on  the  shippers,  and  the  fire  that  occurred,  and 
consequent  loss  of  life,  a  crime  on  the  part  of  the  master. 

By  the  twelfth  section  of  the  act  of  1838,  chap.  191,  every  per- 
son employed  on  any  steamboat  or  vessel,  by  whose  negligence  to 
his  respective  duty  the  life  of  any  person  shall  be  destroyed,  shall 
be  deemed  guilty  of  manslaughter,  and  subject  to  conviction  and 
imprisonment  at  hard  labor  for  a  time  not  exceeding  ten  years. 
(5  Statutes  at  Large,  306.)  Here  the  legislature  have  put  gross 
negligence  in  the  category  of  crimes  of  a  high  grade,  and  of 
frauds  of  course  ;  nor  can  this  Court  assume  a  less  stringent  prin- 
ciple, in  a  case  of  loss  of  property,  than  Congress  has  recognized 
as  the  true  one,  if  life  be  destroyed  by  such  negligence.  From 
the  facts  before  us,  I  feel  warranted  in  saying,  that,  had  the 
captain  survived  the  destruction  of  the  ship  and  the  loss  of  many 
lives  by  the  disaster,  he  would  have  been  clearly  guilty  according 
to  the  twelfth  section. 

One  single  circumstance  is  decisive  of  the  culpable  negligence. 
By  section  ninth  of  the  above  act,  it  is  made  "  the  duty  of  the 
master  and  owner  of  every  steamvessel  employed  on  the  sea,  to 
provide,  as  a  part  of  the  necessary  furniture,  a  suction-hose  and 
fire-engine,  and  hose  suitable  to  be  worked  on  said  boat  in  case  of 
fire,  and  carry  the  same  upon  each  and  every  voyage,  in  good 
order."  This  vessel  had  something  of  the  kind  ;  but  it  was  in  no 
order  for  use,  and  a  mere  delusion,  and  a  sheer  fraud  on  the  law 
and  the  public.  Had  there  been  such  an  engine  and  hose,  the 
fire  could  have  been  extinguished  in  all  probability,  as  I  appre- 
hend. 

2.  There  was  only  a  single  rigged  bucket  on  board,  and  nothing 
else   to   reach  the  water  with,  and  the   money  of  libellants  was 
thrown  from  the  boxes,  and  they  used  to  lift  water. 

3.  The  flue  from  the  furnace  ran  through  three  decks,  and  was 
red-hot  through  the  three  decks,  and  the  cotton  was  stowed  within 
eighteen  inches  on  all  sides  of  this  red-hot  flue,  and  the  bales 
pressed  in,  three  tiers  deep,  from  the  boiler-deck  to  the  next  deck, 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS'  BANK,     kxiii 

so  that  it  would  have  been  with  much  difficulty  that  the  cotton 
could  have  been  removed  should  a  fire  occur  ;  there  the  fire  did 
occur,  and  the  cotton  was  not  removed,  —  wherefore  the  vessel 
was  burnt.  And  from  the  mode  of  stowage  a  fire  could  hardly  be 
avoided,  and  was  to  be  expected  and  guarded  against. 

Mr.  Justice  DANIEL.  —  Having  felt  myself  bound  to  treat  at 
some  extent  what  seemed  to  me  the  decisive,  and  what  may,  too, 
be  called  the  public  or  constitutional  question  involved  in  this 
cause,  —  the  question  of  jurisdiction, —  as  to  what  may  be  the 
merits  of  this  controversy,  the  obligations  sustained  by  the  parties 
to  each  other,  and  the  extent  to  which  these  have  been  fulfilled  or 
violated  ;  I  shall  content  myself  with  simply  giving  the  conclusions 
to  which  my  mind  has  been  conducted,  without  pretending  to  rea- 
son them  out  fully  upon  the  facts  or  the  law  of  the  case,  because 
those  conclusions  would  not  be  the  grounds  of  a  formal  dissent, 
though  disaffirmed  by  a  majority  of  my  brethren. 

Whilst  I  am  impressed  with  the  strong  necessity  that  exists  for 
guarding  against  fraud  or  neglect  in  those  who,  by  holding  them- 
selves forth  as  fitted  to  take  charge  of  the  lives,  the  health,  or  the 
property  of  the  community,  thereby  invite  the  public  trust  and 
reliance,  I  am  not  prepared  to  say  that  there  can  be  no  limit  or  qual- 
ification to  the  responsibility  of  those  who  embark  in  these  or  simi- 
lar undertakings,  —  limits  which  may  be  implied  from  the  inherent 
nature  of  those  undertakings  themselves,  or  which  may  result  from 
express  stipulation.  It  seems  to  me  undeniable,  that  a  carrier  may 
select  the  particular  line  or  description  of  business  in  which  he 
engages,  and  that,  so  long  as  he  with  good  faith  adheres  to  that  de- 
scription, he  cannot  be  responsible  for  any  thing  beyond  or  incon- 
sistent with  it.  The  rule  which  makes  him  an  insurer  against 
every  thing  but  the  act  of  God  or  the  public  enemy,  makes  him  an 
insurer  as  to  performances  only  which  are  consistent  with  his  un- 
dertaking as  carrier.  A  common  carrier  of  travellers  is  bound  to 
the  preservation  of  the  accustomed  baggage  of  the  traveller,  be- 
cause of  the  known  custom  that  travellers  carry  with  them  articles 
for  their  comfort  and  accommodation,  and  the  price  for  which  the 
transportation  is  undertaken  is  graduated  on  that  presumption ; 
but  the  carrier  would  not  therefore  be  responsible  for  other  arti- 
cles, of  extraordinary  value,  secretly  transported  upon  his  vehicle, 


APPENDIX. 

because  by  this  secrecy  he  is  defrauded  of  a  compensation  com- 
mensurate with  the  value  of  the  subject  transported,  and  with  the 
increased  hazards  to  which  it  is  attempted  to  commit  him  without 
his  knowledge  or  assent.  But  to  render  him  liable,  he  must  have 
received  the  article  for  transportation,  and  it  must  be  a  subject 
falling  fairly  within  the  scope  of  his  engagement.  Within  this 
range  he  is  an  insurer,  with  the  exceptions  above  stated.  But  a 
carrier  may,  in  a  given  case,  be  exempted  from  liability  for  loss, 
without  fraud,  by  express  agreement  with  the  person  for  whom  he 
undertakes  ;  for  I  cannot  well  imagine  a  principle  creating  a  dis- 
ability in  a  particular  class  of  persons  to  enter  into  a  contract 
fraught  with  no  criminal  or  immoral  element,  —  a  disability,  in- 
deed, extending  injuriously  to  others,  who  might  find  it  materially 
beneficial  to  make  a  contract  with  them.  A  carrier  may  also  be 
exempted  from  liability  by  the  conduct  of  the  owner  of  property, 
in  keeping  the  exclusive  possession  and  control  of  it,  and  thereby 
withholding  it  from  the  care  and  management  of  the  carrier.  Upon 
applying  the  principles  here  succinctly  stated  to  the  evidence  in 
this  cause,  it  is  not  made  out  in  proof,  to  my  mind,  that  the  re- 
spondents ever  received,  as  carriers,  from  the  libellants,  or  indeed 
in  any  other  capacity,  property  of  any  species  or  description,  or 
ever  knew  that  property  of  the  libellants  was,  directly  or  indirectly, 
within  the  possession  of  the  respondents,  or  on  board  their  vessel. 
It  is  not  in  proof  that  Harnden,  in  his  contract  with  the  respond- 
ents, acted  as  the  agent  of  the  libellants  or  for  their  benefit,  or 
that,  at  the  time  of  the  agreement  or  of  the  shipment  made  by 
Harnden,  the  libellants  and  respondents  were  known  to  each  other 
by  transactions  as  shipper  and  carrier.  It  is  established  by  proof, 
that  Harnden  contracted,  in  his  own  name  and  behalf  alone,  with 
the  respondents  for  a  separate  compartment  on  board  their  vessel, 
to  be,  with  its  contents,  (the  latter  unknown  to  the  respondents,) 
at  all  times  under  his  exclusive  control ;  that  the  property  alleged 
to  have  been  lost  was,  if  in  this  separate  compartment,  placed  there 
without  certain  knowledge  of  its  character  or  value  on  the  part  of 
the  respondents,  was  under  the  exclusive  direction  of  Harnden, 
who  accompanied  it,  and  who,  up  to  the  time  of  the  conflagration 
of  the  vessel,  held  the  property  under  lock  and  key,  and  could 
alone,  without  violence  and  a  breach  of  the  engagement,  have  had 
access  to  it.  Were  this  controversy  directly  between  Harnden 


NEW  JERSEY  STEAM  NAVIGATION  CO.  V.  MERCHANTS*  BANK.    IxXV 

and  the  respondents,  from  the  peculiar  nature  of  the  contract  be- 
tween these  parties,  and  from  the  possession  of  the  subject  reserved 
to  and  exercised  by  the  former,  any  liability  of  the  respondents, 
even  then,  might  be  a  matter  of  doubt ;  but  there  should,  I  think, 
be  no  difficulty  in  concluding  that  no  kind  of  liability  could  attach 
to  the  respondents  in  favor  of  persons  for  whom  they  had  under- 
taken no  duty,  and  who,  in  reference  to  the  transaction  in  question, 
were  strangers,  entirely  unknown  to  them.  Upon  the  merits  of 
this  case,  as  well  as  upon  the  question  of  jurisdiction,  I  think  the 
decree  of  the  Circuit  Court  ought  to  be  reversed,  and  the  libel  dis- 
missed. 

This  cause  came  on  to  be  heard  on  the  transcript  of  the  record 
from  the  Circuit  Court  of  the  United  States,  for  the  District  of 
Rhode  Island,  and  was  argued  by  counsel.  On  consideration 
whereof,  it  is  now  here  ordered  and  decreed  by  this  Court,  that  the 
decree  of  the  said  Circuit  Court  in  this  cause  be,  and  the  same  is 
hereby  affirmed,  with  costs,  and  damages  at  the  rate  of  six  per 
centum  per  annum. 

Mr.  Justice  WOODBTTRY  gave  no  opinion  on  the  validity  to  the 
objections  to  a  recovery  by  the  plaintiff;  but  gave  an  elaborate  and 
very  learned  opinion  upon  the  strongly  contested  question  of  admi' 
rally  jurisdiction. 


APPENDIX. 


ACTS  OF  THE   CONGRESS  OF  THE  UNITED  STATES  REGULATING 
THE  CARRIAGE  OF  PASSENGERS  IN  MERCHANT  VESSELS,  ETC. 


ACT  OP  1847,  CHAP.  16. 

An  Act  to  regulate  the  carriage  of  passengers  in  merchant  vessels :   February  22, 
1847.     [See  ante,  §  626-  629.] 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  if  the  master 
of  any  vessel  owned  in  whole  or  in  part  by  a  citizen  of  the  United 
States  of  America,  or  by  a  citizen  of  any  foreign  country,  shall 
take  on  board  such  vessel,  at  any  foreign  port  or  place,  a  greater 
number  of  passengers  than  in  the  following  proportion  to  the  space 
occupied  by  them  and  appropriated  for  their  use,  and  unoccupied 
by  stores,  or  other  goods,  not  being  the  personal  luggage  of  such 
passengers,  that  is  to  say,  on  the  lower  deck  or  platform  one  pas- 
senger for  every  fourteen  clear  superficial  feet  of  deck,  if  such 
vessel  is  not  to  pass  within  the  tropics  during  such  voyage  ;  but  if 
such  vessel  is  to  pass  within  the  tropics  during  such  voyage,  then 
one  passenger  for  every  twenty  such  clear  superficial  feet  of  deck, 
and  on  the  orlop  deck  (if  any)  one  passenger  for  every  thirty  such 
superficial  feet  in  all  cases,  with  intent  to  bring  such  passengers  to 
the  United  States  of  America,  and  shall  leave  such  port  or  place 
with  the  same,  and  bring  the  same  or  any  number  thereof,  within 
the  jurisdiction  of  the  United  States  aforesaid,  or  if  any  such  master 
of  vessel  shall  take  on  board  of  his  vessel,  at  any  port  or  place 
within  the  jurisdiction  of  the  United  States  aforesaid,  any  greater 
number  of  passengers  than  the  proportions  aforesaid  admit,  with 
intent  to  carry  the  same  to  any  foreign  port  or  place,  every  such 
master  shall  be  deemed  guilty  of  a  misdemeanor,  and,  upon  con- 
viction thereof  before  any  circuit  or  district  Court  of  the  United 
States  aforesaid,  shall,  for  each  passenger  taken  on  board  beyond 
the  above  proportions,  be  fined  in  the  sum  of  fifty  dollars,  and  may 
also  be  imprisoned  for  any  term  not  exceeding  one  year  :  Provided, 


ACTS   REGULATING  PASSENGER  VESSELS. 

That  this  act  shall  not  be  construed  to  permit  any  ship  or  vessel  to 
carry  more  than  two  passengers  to  five  tons  of  such  ship  or  vessel. 

SEC.  2.  And  be  it  further  enacted,  That  if  the  passengers  so 
taken  on  board  of  such  vessel,  and  brought  into  or  transported  from 
the  United  States  aforesaid,  shall  exceed  the  number  limited  by  the 
last  section  to  the  number  of  twenty  in  the  whole,  such  vessel  shall 
be  forfeited  to  the  United  States  aforesaid,  and  be  prosecuted  and 
distributed  as  forfeitures  are  under  the  act  to  regulate  duties  on 
imports  and  tonnage. 

SEC.  3.  And  be  it  further  enacted,  That  if  any  such  vessel  as 
aforesaid  shall  have  more  than  two  tiers  of  berths,  or  in  case,  in 
such  vessel,  the  interval  between  the  floor  and  the  deck  or  platform 
beneath  shall  not  be  at  least  six  inches,  and  the  berths  well  con- 
structed, or  in  case  the  dimensions  of  such  berths  shall  not  be  at 
least  six  feet  in  length,  and  at  least  eighteen  inches  in  width,  for 
each  passenger  as  aforesaid,  then  the  master  of  said  vessel,  and  the 
owners  thereof,  severally,  shall  forfeit  and  pay  the  sum  of  five  dol- 
lars for  each  and  every  passenger  on  board  of  said  vessel  on  such 
voyage,  to  be  recovered  by  the  United  States  as  aforesaid,  in  any 
Circuit  or  District  Court  of  the  United  States  where  such  vessel 
may  arrive,  or  from  which  she  sails. 

SEC.  4.  And  be  it  further  enacted,  That,  for  the  purposes  of  this 
act,  it  shall  in  all  cases  be  computed  that  two  children,  each  being 
under  the  age  of  eight  years,  shall  be  equal  to  one  passenger,  and 
that  children  under  the  age  of  one  year  shall  not  be  included  in  the 
computation  of  the  number  of  passengers. 

SEC.  5.  And  be  it  further  enacted,  That  the  amount  of  the  sev- 
eral penalties  imposed  by  this  act  shall  be  liens  on  the  vessel  or 
vessels  violating  its  provisions ;  and  such  vessel  may  be  libelled 
and  sold  therefor  in  the  District  Court  of  the  United  States  afore- 
said in  which  such  vessel  shall  arrive.  Approved,  February  22, 
1847. 


ACT  OF  1848,  CHAP.  41. 

An  Act  to  provide  for  the  ventilation  of  passenger  vessels,  and  for  other  purposes : 

May  17, 1848. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  all  vessels, 
G* 


Ixxviii  APPENDIX. 

whether  of  the  United  States  or  any  other  country,  having  sufficient 
capacity  according  to  law  for  fifty  or  more  passengers,  (other  than 
cabin  passengers,)  shall,  when  employed  in  transporting  such  pas- 
sengers between  the  United  States  and  Europe,  have  on  the  upper 
deck,  for  the  use  of  such  passengers,  a  house  over  the  passage-way 
leading  to  the  apartment  allotted  to  such  passengers  below  deck, 
firmly  secured  to  the  deck,  or  combings  of  the  hatch,  with  two 
doors,  the  sills  of  which  shall  be  at  least  one  foot  above  the  deck, 
so  constructed  that  one  door  or  window  in  such  house  may,  at  all 
times,  be  left  open  for  ventilation  ;  and  all  vessels  so  employed, 
and  having  the  capacity  to  carry  one  hundred  and  fifty  such  pas- 
sengers, or  more,  shall  have  two  such  houses ;  and  the  stairs  or 
ladder  leading  down  to  the  aforesaid  apartment  shall  be  furnished 
with  a  hand-rail  of  wood  or  strong  rope  :  Provided,  nevertheless, 
Booby  hatches  may  be  substituted  for  such  houses  in  vessels  having 
three  permanent  decks. 

SEC.  2.  And  be  it  further  enacted,  That  every  such  vessel  so 
employed,  and  having  the  legal  capacity  for  more  than  one  hundred 
such  passengers,  shall  have  at  least  two  ventilators  to  purify  the 
apartment  or  apartments  occupied  by  such  passengers  ;  one  of 
which  shall  be  inserted  in  the  after  part  of  the  apartment  or  apart- 
ments, and  the  other  shall  be  placed  in  the  forward  portion  of  the 
apartment  or  apartments,  and  one  of  them  shall  have  an  exhausting 
cap  to  carry  off  the  foul  air,  and  the  other  a  receiving  cap  to  carry 
down  the  fresh  air ;  which  said  ventilators  shall  have  a  capacity 
proportioned  to  the  size  of  the  apartment  or  apartments  to  be  puri- 
fied ;  namely,  if  the  apartment  or  apartments  will  lawfully  author- 
ize the  reception  of  two  hundred  such  passengers,  the  capacity  of 
such  ventilators  shall  each  of  them  be  equal  to  a  tube  twelve  inches 
diameter  in  the  clear,  and  in  proportion  for  larger  or  smaller  apart- 
ments ;  and  all  said  ventilators  shall  rise  at  least  four  feet  six  inches 
above  the  upper  deck  of  any  such  vessel,  and  be  of  the  most  ap- 
proved form  and  construction  :  Provided,  That  if  it  shall  appear, 
from  the  report  to  be  made  and  approved,  as  provided  in  the  seventh 
section  of  this  act,  that  such  vessel  is  equally  well  ventilated  by  any 
other  means,  such  other  means  of  ventilation  shall  be  deemed,  and 
held  to  be,  a  compliance  with  the  provisions  of  this  section. 

SEC.  3.  And  be  it  further  enacted,  That  every  vessel  carrying 
more  than  fifty  such  passengers  shall  have  for  their  use  on  deck, 


ACTS  REGULATING  PASSENGER  VESSELS. 

housed  and  conveniently  arranged,  at  least  one  camboose  or  cook- 
ing range,  the  dimensions  of  which  shall  be  equal  to  four  feet  long 
and  one  foot  six  inches  wide  for  every  two  hundred  passengers ; 
and  provisions  shall  be  made  in  the  manner  aforesaid  in  this  ratio 
for  a  greater  or  less  number  of  passengers  :  Provided,  however, 
And  nothing  herein  contained  shall  take  away  the  right  to  make 
such  arrangements  for  cooking  between  decks,  if  that  shall  be 
deemed  desirable. 

SEC.  4.  And  be  it  further  enacted,  That  all  vessels  employed  as 
aforesaid  shall  have  on  board,  for  the  use  of  such  passengers,  at  the 
time  of  leaving  the  last  port  whence  such  vessel  shall  sail,  well 
secured  under  deck,  for  each  passenger,  at  least  fifteen  pounds  of 
good  navy  bread,  ten  pounds  of  rice,  ten  pounds  of  oatmeal,  ten 
pounds  of  wheat  flour,  ten  pounds  of  peas  and  beans,  thirty-five 
pounds  of  potatoes,  one  pint  of  vinegar,  sixty  gallons  of  fresh 
water,  ten  pounds  of  salted  pork,  free  of  bone,  all  to  be  of  good 
quality,  and  a  sufficient  supply  of  fuel  for  cooking ;  but  at  places 
where  either  rice,  oatmeal,  wheat  flour,  or  peas  and  beans  cannot 
be  procured,  of  good  quality  and  on  reasonable  terms,  the  quantity 
of  either  or  any  of  the  other  last-named  articles  may  be  increased 
and  substituted  therefor  ;  and  in  case  potatoes  cannot  be  procured 
on  reasonable  terms,  one  pound  of  either  of  said  articles  may  be 
substituted  in  lieu  of  five  pounds  of  potatoes,  and  the  captains  of 
such  vessels  shall  deliver  to  each  passenger  at  least  one  tenth  part 
of  the  aforesaid  provisions  weekly,  commencing  on  the  day  of  sail- 
ing, and  daily  at  least  three  quarts  of  water,  and  sufficient  fuel  for 
cooking  ;  and  if  the  passengers  on  board  of  any  such  vessel  in 
which  the  provisions,  fuel,  and  water  herein  required  shall  not  have 
been  provided  as  aforesaid,  shall  at  any  time  be  put  on  short  allow- 
ance during  any  voyage,  the  master  or  owner  of  any  such  vessel 
shall  pay  to  each  and  every  passenger  who  shall  have  been  put  on 
short  allowance  the  sum  of  three  dollars  for  each  and  every  day 
they  may  have  been  on  such  short  allowance,  to  be  recovered  in  the 
Circuit  or  District  Court  of  the  United  States  :  Provided,  neverthe- 
less, And  nothing  herein  contained  shall  prevent  any  passenger, 
with  the  consent  of  the  captain,  from  furnishing  for  himself  the 
articles  of  food  herein  specified  ;  and,  if  put  on  board  in  good 
order,  it  shall  fully  satisfy  the  provisions  of  this  act  so  far  as  regards 
food  :  And  provided  further,  That  any  passenger  may  also,  with 


1XXX  APPENDIX. 

the  consent  of  the  captain,  furnish  for  himself  an  equivalent  for  the 
articles  of  food  required  in  other  and  different  articles  ;  and  if, 
without  waste  or  neglect  on  the  part  of  the  passenger,  or  inevitable 
accident,  they  prove  insufficient,  and  the  captain  shall  furnish  com- 
fortable food  to  such  passengers  during  the  residue  of  the  voyage, 
this,  in  regard  to  food,  shall  also  be  a  compliance  with  the  terms  of 
this  act. 

SEC.  5.  And  be  it  further  enacted,  That  the  captain  of  any  such 
vessel  so  employed,  is  hereby  authorized  to  maintain  good  disci- 
pline, and  such  habits  of  cleanliness  among  such  passengers,  as 
will  tend  to  the  preservation  and  promotion  of  health  ;  and  to  that 
end,  he  shall  cause  such  regulations  as  he  may  adopt  for  this  pur- 
pose, to  be  posted  up,  before  sailing,  on  board  such  vessel,  in  a 
place  accessible  to  such  passengers,  and  shall  keep  the  same  so 
posted  up  during  the  voyage  ;  and  it  is  hereby  made  the  duty  of 
said  captain  to  cause  the  apartment  occupied  by  such  passengers  to 
be  kept,  at  all  times,  in  a  clean,  healthy  state,  and  the  owners  of 
every  such  vessel  so  employed  are  required  to  construct  the  decks, 
and  all  parts  of  said  apartment,  so  that  it  can  be  thoroughly 
cleansed  ;  and  they  shall  also  provide  a  safe,  convenient  privy  or 
water-closet  for  the  exclusive  use  of  every  one  hundred  such  pas- 
sengers. And  when  the  weather  is  such  that  said  passengers  can- 
not be  mustered  on  deck  with  their  bedding,  it  shall  be  the  duty  of 
the  captain  of  every  such  vessel  to  cause  the  deck  occupied  by 
such  passengers  to  be  cleaned  [cleansed]  with  chloride  of  lime,  or 
some  other  equally  efficient  disinfecting  agent,  and  also  at  such 
other  times  as  said  captain  may  deem  necessary. 

SEC.  6.  And  be  it  further  enacted,  That  the  master  and  owner  or 
owners  of  any  such  vessel  so  employed,  which  shall  not  be  provided 
with  the  house  or  houses  over  the  passage-ways,  as  prescribed  in 
the  first  section  of  this  act ;  or  with  ventilators,  as  prescribed  in  the 
second  section  of  this  act ;  or  with  the  cambooses  or  cooking  ranges, 
with  the  houses  over  them,  as  prescribed  in  the  third  section  of  this 
act ;  shall  severally  forfeit  and  pay  to  the  United  States  the  sum  of 
two  hundred  dollars  for  each  and  every  violation  of,  or  neglect  to 
conform  to,  the  provisions  of  each  of  said  sections  ;  and  fifty  dol- 
lars for  each  and  every  neglect  or  violation  of  any  of  the  provisions 
of  the  fifth  section  of  this  act ;  to  be  recovered  by  suit  in  any  Cir- 
cuit or  District  Court  of  the  United  States,  within  the  jurisdiction  of 


ACTS  REGULATING  PASSENGER  VESSELS.  Ixxxi 

which  the  said  vessel  may  arrive,  or  from  which  it  may  be  about 
to  depart,  or  at  any  place  within  the  jurisdiction  of  such  Courts, 
wherever  the  owner  or  owners,  or  captain  of  such  vessel  may  be 
found. 

SEC.  7.  And  be  it  further  enacted,  That  the  collector  of  the  cus- 
toms, at  any  port  in  the  United  States  at  which  any  vessel  so  em- 
ployed shall  arrive,  or  from  which  any  such  vessel  shall  be  about  to 
depart,  shall  appoint  and  direct  one  of  the  inspectors  of  the  cus- 
toms for  such  port  to  examine  such  vessel,  and  report  in  writing  to 
such  collector  whether  the  provisions  of  the  first,  second,  third,  and 
fifth  sections  of  this  act  have  been  complied  with  in  respect  to  such 
vessel ;  and  if  such  report  shall  state  such  compliance,  and  be  ap- 
proved by  such  collector,  it  shall  be  deemed  and  held  as  conclusive 
evidence  thereof. 

SEC.  8.  And  be  it  further  enacted,  That  the  first  section  of  the 
act  entitled  "  An  act  to  regulate  the  carriage  of  passengers  in  mer- 
chant vessels,"  approved  February  twenty -second,  eighteen  hundred 
and  forty-seven,  be  so  amended  that,  when  the  height  or  distance 
between  the  decks  of  the  vessels  referred  to  in  the  said  section  shall 
be  less  than  six  feet,  and  not  less  than  five  feet,  there  shall  be  al- 
lowed to  each  passenger  sixteen  clear  superficial  feet  on  the  deck, 
instead  of  fourteen,  as  prescribed  in  said  section  ;  and  if  the  height 
or  distance  between  the  decks  shall  be  less  than  five  feet,  there  shall 
be  allowed  to  each  passenger  twenty-two  clear  superficial  feet  on 
the  deck  ;  and  if  the  master  of  any  such  vessel  shall  take  on  board 
his  vessel,  in  any  port  of  the  United  States,  a  greater  number  of 
passengers  than  is  allowed  by  this  section,  with  the  intent  specified 
in  said  first  section  of  the  act  of  eighteen  hundred  and  forty-seven, 
or  if  the  master  of  any  such  vessel  shall  take  on  board  at  a  foreign 
port,  and  bring  within  the  jurisdiction  of  the  United  States,  a  greater 
number  of  passengers  than  is  allowed  by  this  section,  said  master 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  punished  in  the  manner  provided  for  the  punish- 
ment of  persons  convicted  of  a  violation  of  the  act  aforesaid  ;  and 
in  computing  the  number  of  passengers  on  board  such  vessels,  all 
children  under  the  age  of  one  year,  at  the  time  of  embarkation, 
shall  be  excluded  from  such  computation. 

SEC.  9.  And  be  it  further  enacted,  That  this  act  shall  take  effect, 
in  respect  to  such  vessels  sailing  from  ports  in  the  United  States,  in 


Ixxxii 


APPENDIX. 


thirty  days  from  the  time  of  its  approval ;  and  in  respect  to  every 
such  vessel  sailing  from  ports  in  Europe,  in  sixty  days  after  such 
approval ;  and  it  is  hereby  made  the  duty  of  the  Secretary  of  State 
to  give  notice,  in  the  ports  of  Europe,  of  this  act,  in  such  manner 
as  he  may  deem  proper. 

SEC.  10.  And  be  it  further  enacted,  That  so  much  of  the  first 
section  of  the  act  entitled  "  An  act  regulating  passenger  ships  and 
vessels,"  approved  March  second,  eighteen  hundred  and  nineteen, 
or  any  other  act  that  limits  the  number  of  passengers  to  two  for 
every  five  tons,  is  hereby  repealed.  Approved,  May  17,  1848. 


ACT  OF  1849,  CHAP.  111. 

An  Act  to  extend  the  provisions  of  all  laws  now  in  force  relating  to  the  carriage  of 
passengers  in  merchant  vessels,  and  the  regulation  thereof. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  all  vessels 
bound  from  any  port  in  the  United  States  to  any  port  or  place  in 
the  Pacific  Ocean,  or  on  its  tributaries,  or  from  any  such  port  or 
place  to  any  port  in  the  United  States  on  the  Atlantic  or  its  tributa- 
ries, shall  be  subject  to  the  provisions  of  all  the  laws  now  in  force 
relating  to  the  carriage  of  passengers  in  merchant  vessels,  sailing 
to  and  from  foreign  countries,  and  the  regulation  thereof;  except 
the  fourth  section  of  the  "  Act  to  provide  for  the  ventilation  of 
passenger  vessels,  and  for  other  purposes,"  approved  May  seven- 
teenth, eighteen  hundred  and  forty-eight,  relating  to  provisions, 
water,  and  fuel ;  but  the  owners  and  masters  of  all  such  vessels 
shall  in  all  cases  furnish  to  each  passenger  the  daily  supply  of 
water  therein  mentioned,  and  they  shall  furnish,  or  cause  the  pas- 
sengers to  furnish  for  themselves,  a  sufficient  supply  of  good  and 
wholesome  food  ;  and  in  case  they  shall  fail  so  to  do,  or  shall  pro- 
vide unwholesome  or  unsuitable  provisions,  they  shall  be  subject  to 
the  penalty  provided  in  said  fourth  section  in  case  the  passengers 
are  put  on  short  allowance  of  water  or  provisions. 

SEC.  2.  And  be  it  further  enacted,  That  the  act  entitled  "  An 
Act  to  regulate  the  carriage  of  passengers  in  merchant  vessels," 


ACTS   REGULATING  PASSENGER   VESSELS. 


approved  February  twenty  -second,  eighteen  hundred  and  forty- 
seven,  shall  be  so  amended  as  that  a  vessel  passing  into  or  through 
the  tropics  shall  be  allowed  to  carry  the  same  number  of  passen- 
gers as  vessels  that  do  not  enter  the  tropics. 

SEC.  3.  And  be  it  further  enacted.  That  this  act  shall  take  effect 
on  and  after  the  fifteenth  day  of  March,  eighteen  hundred  and  forty- 
nine.  Approved,  March  3,  1849. 


APPENDIX. 


ACTS  OF  THE  CONGRESS  OF  THE  UNITED  STATES  FOR  THE 
SAFETY  OF  PASSENGERS  ON  BOARD  OF  STEAM  VESSELS. 


ACT  OF  1838,  CHAP.  191. 

An  Act  to  provide  for  the  better  security  of  the  lives  of  passengers  on  board  of 
vessels  propelled  in  whole  or  in  part  by  steam. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  it  shall  be 
the  duty  of  all  owners  of  steamboats,  or  vessels  propelled  in  whole 
or  in  part  by  steam,  on  or  before  the  first  day  of  October,  one 
thousand  eight  hundred  and  thirty-eight,  to  make  a  new  enrolment 
of  the  same,  under  the  existing  laws  of  the  United  States,  and  take 
out  from  the  collector  or  surveyor  of  the  port,  as  the  case  may  be, 
where  such  vessel  is  enrolled,  a  new  license,  under  such  conditions 
as  are  now  imposed  by  law,  and  as  shall  be  imposed  by  this  act. 

SEC.  2.  And  be  it  further  enacted,  That  it  shall  not  be  lawful  for 
the  owner,  master,  or  captain  of  any  steamboat  or  vessel,  propelled 
in  whole  or  in  part  by  steam,  to  transport  any  goods,  wares,  and 
merchandise,  or  passengers,  in  or  upon  the  bays,  lakes,  rivers,  or 
other  navigable  waters  of  the  United  States,  from  and  after  the  said 
first  day  of  October,  one  thousand  eight  hundred  and  thirty-eight ; 
without  having  first  obtained,  from  the  proper  officer,  a  license 
under  the  existing  laws,  and  without  having  complied  with  the  con- 
ditions imposed  by  this  act ;  and  for  each  and  every  violation  of  this 
section,  the  owner  or  owners  of  said  vessel  shall  forfeit  and  pay  to 
the  United  States  the  sum  of  five  hundred  dollars,  one  half  for  the 
use  of  the  informer  ;  and  for  which  sum  or  sums  the  steamboat  or 
vessel  so  engaged  shall  be  liable,  and  may  be  seized  and  proceeded 
against  summarily,  by  way  of  libel,  in  any  District  Court  of  the 
United  States  having  jurisdiction  of  the  offence. 

SEC.  3.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of 
the  District  Judge  of  the  United  States,  within  whose  district  a,ny 


STEAMBOAT  ACT   OP  CONGRESS   OP    1838,   CHAP.    191. 

ports  of  entry  or  delivery  may  be,  on  the  navigable  waters,  bays, 
lakes,  and  rivers  of  the  United  States,  upon  the  application  of  the 
master  or  owner  of  any  steamboat  or  vessel  propelled  in  whole  or  in 
part  by  steam,  to  appoint,  from  time  to  time,  one  or  more  persons 
skilled  and  competent  to  make  inspections  of  such  boats  and  vessels, 
and  of  the  boilers  and  machinery  employed  in  the  same,  who  shall 
not  be  interested  in  the  manufacture  of  steam-engines,  steamboat 
boilers,  or  other  machinery  belonging  to  steam-vessels,  whose  duty 
it  shall  be  to  make  such  inspection  when  called  upon  for  that  pur- 
pose, and  to  give  to  the  owner  or  master  of  such  boat  or  vessel 
duplicate  certificates  of  such  inspection  ;  such  persons,  before  enter- 
ing upon  the  duties  enjoined  by  this  act,  shall  make  and  subscribe 
an  oath  or  affirmation  before  said  District  Judge,  or  other  officer 
duly  authorized  to  administer  oaths,  well,  faithfully,  and  impartially 
Jo  execute  and  perform  the  services  herein  required  of  them. 

SEC.  4.  And  be  it  further  enacted,  That  the  person  or  persons 
who  shall  be  called  upon  to  inspect  the  hull  of  any  steamboat  or 
vessel,  under  the  provisions  of  this  act,  shall,  after  a  thorough  ex- 
amination of  the  same,  give  to  the  owner  or  master,  as  the  case 
may  be,  a  certificate,  in  which  shall  be  stated  the  age  of  the  said 
boat  or  vessel,  when  and  where  originally  built,  and  the  length  of 
time  the  same  has  been  running.  And  he  or  they  shall  also  state 
whether,  in  his  or  their  opinion,  the  said  boat  or  vessel  is  sound, 
and  in  all  respects  seaworthy,  and  fit  to  be  used  for  the  transporta- 
tion of  freight  or  passengers  ;  for  which  service,  so  performed  upon 
each  and  every  boat  or  vessel,  the  inspectors  shall  each  be  paid  and 
allowed,  by  said  master  or  owner  applying  for  such  inspection,  the 
sum  of  five  dollars. 

SEC.  5.  And  be  it  further  enacted,  That  the  person  or  persons 
who  shall  be  called  upon  to  inspect  the  boilers  and  machinery  of 
any  steamboat  or  vessel,  under  the  provisions  of  this  act,  shall,  after 
a  thorough  examination  of  the  same,  make  a  certificate,  in  which 
he  or  they  shall  state  his  or  their  opinion  whether  said  boilers  are 
sound  and  fit  for  use,  together  with  the  age  of  said  boilers  ;  and 
duplicates  thereof  shall  be  delivered  to  the  owner  or  master  of  such 
vessel,  one  of  which  it  shall  be  the  duty  of  the  said  master  and 
owner  to  deliver  to  the  collector  or  surveyor  of  the  port  whenever 
he  shall  apply  for  a  license,  or  for  a  renewal  of  a  license  ;  the  other 
he  shall  cause  to  be  posted  up,  and  kept  in  some  conspicuous  part 

H 


APPENDIX. 


of  said  boat,  for  the  information  of  the  public  ;  and  for  each  and 
every  inspection  so  made,  each  of  the  said  inspectors  shall  be  paid, 
by  the  said  master  or  owner  applying,  the  sum  of  five  dollars. 

SEC.  6.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of 
the  owners  and  masters  of  steamboats  to  cause  the  inspection  pro- 
vided under  the  fourth  section  of  this  act  to  be  made  at  least  once 
in  every  twelve  months  ;  and  the  examination  required  by  the  fifth 
section,  at  least  once  in  every  six  months  ;  and  deliver  to  the  col- 
lector or  surveyor  of  the  port  where  his  boat  or  vessel  has  been 
enrolled  or  licensed,  the  certificate  of  such  inspection  ;  and,  on 
failure  thereof,  he  or  they  shall  forfeit  the  license  granted  to  such 
boat  or  vessel,  and  be  subject  to  the  same  penalty  as  though  he  had 
run  said  boat  or  vessel  without  having  obtained  such  license,  to  be 
recovered  in  like  manner.  And  it  shall  be  the  duty  of  the  owners 
and  masters  of  the  steamboats  licensed  in  pursuance  of  the  provis- 
ions of  this  act,  to  employ  on  board  of  their  respective  boats  a 
competent  number  of  experienced  and  skilful  engineers  ;  and,  in 
case  of  neglect  to  do  so,  the  said  owners  and  masters  shall  be  held 
responsible  for  all  damages  to  the  property  of  any  passenger  on 
board  of  any  boat  occasioned  by  an  explosion  of  the  boiler,  or  any 
derangement  of  the  engine  or  machinery  of  any  boat. 

SEC.  7.  And  be  it  further  enacted,  That  whenever  the  master  of 
any  boat  or  vessel,  or  the  person  or  persons  charged  with  navigating 
said  boat  or  vessel,  which  is  propelled  in  whole  or  in  part  by  steam, 
shall  stop  the  motion  or  headway  of  said  boat  or  vessel,  or  when 
said  boat  or  vessel  shall  be  stopped  for  the  purpose  of  discharging 
or  taking  in  cargo,  fuel,  or  passengers,  he  or  they  shall  open  the 
safety-valve,  so  as  to  keep  the  steam  down  in  said  boiler  as  near  as 
practicable  to  what  it  is  when  the  said  boat  or  vessel  is  under  head- 
way, under  the  penalty  of  two  hundred  dollars  for  each  and  every 
offence. 

SEC.  8.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of 
the  owner  and  master  of  every  steam-vessel  engaged  in  the  trans- 
portation of  freight  or  passengers,  at  sea,  or  on  the  Lakes  Cham- 
plain,  Ontario,  Erie,  Huron,  Superior,  and  Michigan,  the  tonnage 
of  which  vessel  shall  not  exceed  two  hundred  tons,  to  provide  and 
to  carry  with  the  said  boat  or  vessel,  upon  each  and  every  voyage, 
two  long-boats  or  yawls,  each  of  which  shall  be  competent  to  carry 
at  least  twenty  persons  ;  and  where  the  tonnage  of  said  vessel  shall 


STEAMBOAT  ACT   OF  CONGRESS   OF   1838,  CHAP.  191.       Ixxxvii 

exceed  two  hundred  tons,  it  shall  be  the  duty  of  the  owner  and 
master  to  provide  and  carry,  as  aforesaid,  not  less  than  three  long- 
boats or  yawls,  of  the  same  or  larger  dimensions  ;  and  for  every 
failure  in  these  particulars,  the  said  master  and  owner  shall  forfeit 
and  pay  three  hundred  dollars. 

SEC.  9.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of 
the  master  and  owner  of  every  steam-vessel  employed  on  either  of 
the  lakes  mentioned  in  the  last  section,  or  on  the  sea,  to  provide, 
as  a  part  of  the  necessary  furniture,  a  suction-hose  and  fire-engine 
and  hose  suitable  to  be  worked  on  said  boat  in  case  of  fire,  and 
carry  the  same  upon  each  and  every  voyage,  in  good  order ;  and 
that  iron  rods  or  chains  shall  be  employed  and  used  in  the  navigat- 
ing of  all  steamboats,  instead  of  wheel  or  tiller  ropes ;  and  for  a 
failure  to  do  which,  they,  and  each  of  them,  shall  forfeit  and  pay 
the  sum  of  three  hundred  dollars. 

SEC.  10.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of 
the  master  and  owner  of  every  steamboat,  running  between  sunset 
and  sunrise,  to  carry  one  or  more  signal  lights,  that  may  be  seen 
by  other  boats  navigating  the  same  waters,  under  the  penalty  of 
two  hundred  dollars. 

SEC.  11.  And  be  it  further  enacted,  That  the  penalties  imposed 
by  this  act  may  be  sued  for  and  recovered  in  the  name  of  the  Uni- 
ted States,  in  the  District  or  Circuit  Court  of  such  district  or  circuit 
where  the  offence  shall  have  been  committed,  or  forfeiture  incur- 
red, or  in  which  the  owner  or  master  of  said  vessel  may  reside, 
one  half  to  the  use  of  the  informer,  and  the  other  to  the  use  of  the 
United  States  ;  or  the  said  penalty  may  be  prosecuted  for  by  indict- 
ment in  either  of  the  said  Courts. 

SEC.  12.  And  be  it  further  enacted,  That  every  captain,  engi- 
neer, pilot,  or  other  person  employed  on  board  of  any  steamboat  or 
vessel,  propelled  in  whole  or  in  part  by  steam,  by  whose  miscon- 
duct, negligence,  or  inattention  to  his  or  their  respective  duties, 
the  life  or  lives  of  any  person  or  persons  on  board  said  vessel  may 
be  destroyed,  shall  be  deemed  guilty  of  manslaughter,  and,  upon 
conviction  thereof  before  any  Circuit  Court  in  the  United  States, 
shall  be  sentenced  to  confinement  at  hard  labor  for  a  period  not 
more  than  ten  years. 

SEC.  13.  And  be  it  further  enacted,  That  in  all  suits  and  actions 
against  proprietors  of  steamboats,  for  injuries  arising  to  person  or 


Ixxxviii  APPENDIX. 

property  from  the  bursting  of  the  boiler  of  any  steamboat,  or  the 
collapse  of  a  flue,  or  other  injurious  escape  of  steam,  the  fact  of 
such  bursting,  collapse,  or  injurious  escape  of  steam,  shall  be  taken 
as  full  prlma  facie  evidence,  sufficient  to  charge  the  defendant  or 
those  in  his  employment,  with  negligence,  until  he  shall  show  that 
no  negligence  has  been  committed  by  him  or  those  in  his  employ- 
ment. Approved,  July  7,  1838. 


ACT  OP  1843,  CHAP.  94. 

/An  act  to  modify  the  act  entitled  "  An  act  to  provide  for  the  better  security  of  the 
lives  of  passengers  on  board  of  vessels  propelled  in  whole  or  in  part  by  steam," 
approved  July  seventh,  eighteen  hundred  and  thirty-eight. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America,  in  Congress  assembled,  That  every 
boat  or  vessel  which  existing  laws  require  to  be  registered,  and 
which  is  propelled  in  whole  or  in  part  by  steam,  shall  be  provided 
with  such  additional  apparatus  or  means  as,  in  the  opinion  of  the 
inspector  of  steamboats,  shall  be  requisite  to  steer  the  boat  or  ves- 
sel, to  be  located  in  such  part  of  the  boat  or  vessel  as  the  inspector 
may  deem  best  to  enable  the  officers  and  crew  to  steer  and  control 
the  boat  or  vessel,  in  case  the  pilot  or  man  at  the  wheel  is  driven 
from  the  same  by  fire  ;  and  no  boat  or  vessel,  exclusively  propelled 
by  steam,  shall  be  registered,  after  the  passage  of  this  act,  unless 
the  owner,  master,  or  other  proper  person,  shall  file  with  the  col- 
lector or  other  proper  officer  the  certificate  of  the  inspector,  stating 
that  suitable  means  have  been  provided  to  steer  the  boat  or  vessel, 
in  case  the  pilot  or  man  at  the  wheel  is  driven  therefrom  by  fire. 

SEC.  2.  And  be  it  further  enacted,  That  it  shall  be  lawful  in  all 
vessels  or  boats  propelled  in  whole  or  in  part  by  steam,  and  which 
shall  be  provided  with  additional  apparatus  or  means  to  steer  the 
same,  as  required  by  the  first  section  of  this  act,  to  use  wheel  or 
tiller  ropes,  composed  of  hemp  or  other  good  and  sufficient  mate- 
rial, around  the  barrel  or  axle  of  the  wheel,  and  to  a  distance  not 
exceeding  twenty-two  feet  therefrom,  and  also  in  connecting  the 
tiller  or  rudder  yoke  with  iron  rods  or  chains  used  for  working  the 
rudder :  Provided,  That  no  more  rope  for  this  purpose  shall  be 


STEAMBOAT  ACT   OP  CONGRESS   OF   1843,   CHAP.   94.     Ixxxix 

used  than  is  sufficient  to  extend  from  the  connecting  points  of  the 
tiller  or  rudder  yoke  placed  in  any  working  position  beyond  the 
nearest  blocks  or  rollers,  and  give  sufficient  play  to  work  the  ropes 
on  such  blocks  or  rollers  :  And  provided,  further,  That  there  shall 
be  chains  extending  the  whole  distance  of  the  ropes,  so  connected 
with  the  tiller  or  rudder  yoke,  and  attached  or  fastened  to  the  tiller 
or  rudder  yoke  and  the  iron  chains  or  rods  extending  towards  the 
wheel,  in  such  manner  as  will  take  immediate  effect,  and  work  the 
rudder  in  case  the  ropes  are  burnt  or  otherwise  rendered  useless. 

SEC.  3.  And  be  it  further  enacted,  That  the  master  and  owner, 
and  all  others  interested  in  vessels  navigating  Lakes  Champlain, 
Ontario,  Erie,  Huron,  Superior,  and  Michigan,  or  any  of  them,  and 
which  are  propelled  by  sails  and  Erickson's  propeller,  and  used 
exclusively  in  carrying  freight,  shall  from  and  after  the  passage  of 
this  act  be  exempt  from  liability  or  fine  for  failing  to  provide,  as  a 
part  of  the  necessary  furniture  of  such  vessel,  a  suction  hose  and 
fire-engine  and  hose  suitable  to  be  worked  on  such  vessel  in  case  of 
fire,  or  more  than  one  long-boat  or  yawl. 

SEC.  4.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the 
court  before  which  any  suit,  information,  or  indictment  is  or  shall 
be  pending  for  the  violation,  before  the  passage  of  this  act,  of  so 
much  of  the  ninth  section  of  the  act  aforesaid,  as  requires  "  that 
iron  rods  or  chains  shall  be  employed  and  used  in  the  navigation 
of  all  steamboats,  instead  of  wheel  and  tiller  ropes,"  to  order  such 
suit,  information,  or  indictment  to  be  discontinued,  on  such  terms  as 
to  costs  as  the  Court  shall  judge  to  be  just  and  reasonable  :  Pro- 
vided, That  the  defendant  or  defendants  in  such  prosecution  shall 
cause  it  to  appear,  by  affidavit  or  otherwise,  to  the  satisfaction  of 
the  court,  that  he  or  they  had  failed  to  use  iron  rods  or  chains  in 
the  navigation  of  his  or  their  boat  or  boats,  from  a  well-grounded 
apprehension  that  such  rods  or  chains  could  not  be  employed  for 
the  purpose  aforesaid  with  safety. 

SEC.  5.  And  be  it  further  enacted,  That  in  execution  of  the  au- 
thority vested  in  him  by  the  second  section  of  the  joint  resolution, 
"  authorizing  experiments  to  be  made  for  the  purpose  of  testing 
Samuel  Colt's  sub-marine  battery  and  for  other  purposes,"  approved 
August  thirty-first,  one  thousand  eight  hundred  and  forty-two,  the 
secretary  of  the  navy  shall  appoint  a  board  of  examiners,  consisting 
of  three  persons,  of  thorough  knowledge  as  to  the  structure  and  use 

H* 


XC  APPENDIX. 

of  the  steam-engine,  whose  duty  it  shall  be  to  make  experimental 
trials  of  such  inventions  and  plans  designed  to  prevent  the  explosion 
of  steam  boilers  and  collapsing  of  flues,  as  they  may  deem  worthy 
of  examination,  and  report  the  result  of  their  experiments,  with  an 
expression  of  their  opinion  as  to  the  relative  merits  and  efficacy  of 
such  inventions  and  plans  ;  which  report  the  secretary  shall  cause 
to  be  laid  before  Congress,  at  its  next  session.  It  shall  also  be  the 
duty  of  said  examiners  to  examine  and  report  the  relative  strength 
of  copper  and  iron  boilers  of  equal  thickness,  and  what  amount  of 
steam  to  the  square  inch  each,  when  sound,  is  capable  of  working 
with  safety ;  and  whether  hydrostatic  pressure,  or  what  other  plan 
is  best  for  testing  the  strength  of  boilers  under  the  inspection  laws ; 
and  what  limitations  as  to  the  force  or  pressure  of  steam  to  the 
square  inch,  in  proportion  to  the  ascertained  capacity  of  a  boiler  to 
resist,  it  would  be  proper  to  establish  by  law  for  the  more  certain 
prevention  of  explosions. 

SEC.  6.  And  be  it  further  enacted,  That  so  much  of  the  act 
aforesaid  as  is  inconsistent  with  the  provisions  of  this  act  shall  be, 
and  the  same  is  hereby  repealed.  Approved,  March  3, 1843. 


LIBEL — COLLISION   OF   VESSELS   UPON  THE   LAKES.       XC1 


FORM  OF  A  LIBEL  IN  A  SUIT  IN  REM  IN  CASES  OF  COLLISION 
OF  VESSELS  UPON  THE  LAKES. 

Libel  in  a  suit  in  rem,  for  damages  by  collision,  under  the  Act  of  February  26,  1845, 
"  extending  the  jurisdiction  of  the  District  Courts  of  the  United  States  to  certain 
cases  upon  the  lakes  and  navigable  waters  connecting  the  same." 

IN  ADMIRALTY. 

To  the  Judge  of  the  District  Court  of  the  United 
States  for  tlie  District  of . 

A.  B.  of , ,  owner  of  the  schooner  Sylph  hereinafter  men- 
tioned, exhibits  this  his  Libel  against  the  steamboat  Vixen,  (whereof 

C.  D.  is  or  lately  was  master,)  now  lying  in  the  port  of in  the 

district  of aforesaid,  and  within  the  Admiralty  and  Maritime 

jurisdiction  of  this  Honorable  Court ;  her  engine,  machinery,  boats, 
tackle,  apparel,  and  furniture,  and  against  all  persons  lawfully  inter- 
vening for  their  interest  therein,  in  a  cause  of  collision,  civil  and 
maritime.  And  thereupon  the  said  A.  B.  doth  allege  and  articu- 
lately propound  as  follows,  to  wit : 

First.  That  the  said  schooner  Sylph  is  a  vessel  of  more  than 
twenty  tons  burthen,  to  wit,  of  the  burthen  of tons  or  therea- 
bouts ;  and  at  the  time  when  the  cause  of  action  hereinafter  men- 
tioned and  set  forth,  arose,  was  enrolled  and  licensed  for  the  coast- 
ing trade,  and  was  employed  in  the  business  of  commerce  and 
navigation  between  ports  and  places  in  different  States  and  Territo- 
ries of  the  United  States,  upon  the  lakes  and  navigable  waters 
connecting  the  said  lakes. 

Second.  That  on  the  day  of in  the  year ,  the 

aforesaid  schooner,  being  tight,  stanch,  and  well  manned  and 
provided,  sailed  from  the  port  of  Sandusky  in  the  State  of  Ohio, 
with  a  valuable  cargo  of  wheat,  on  a  voyage  to  the  port  of  Buffalo 
in  the  State  of  New  York. 

Third.  That  during  the  said  voyage,  to  wit,  about  eleven  p.  M. 

of  the day  of ,  the  said  schooner  being  then  about  eight 

miles  westerly  from  Cleveland,  with  the  wind  blowing  hard  from 
the  east-southeast,  and  the  said  schooner  being  close  hauled  on  the 
starboard  tack,  her  course  lying  east-northeast,  R.  T.  the  first  mate 
of  the  said  schooner,  who  then  had  the  watch  and  was  the  com- 
manding officer  on  deck,  being  on  the  lookout,  descried  lights  ahead, 


XCH 


APPENDIX. 


and  soon  after  discovered  that  they  were  borne  by  a  steamboat 
approaching  the  said  schooner  in  a  southwesterly  direction,  appa- 
rently about  one  mile  distant,  and  then  bearing  about  one  point  on 
her  lea  bow.  That  as  soon  as  the  said  R.  T.  mate  as  aforesaid, 
had  discovered  the  approach  of  the  said  steamboat,  he  informed  the 
helmsman  of  the  said  schooner  thereof,  and  ordered  him  to  keep 
her  steady,  believing  that  the  said  steamboat  would  pass  her  on  the 
larboard  hand.  That  about  three  minutes  after  the  said  order  was 
given,  it  became  apparent  to  the  said  mate  that  there  was  ground  to 
apprehend  a  collision  with  the  said  steamboat ;  and  within  one  or 
two  minutes  thereafter,  he  became  satisfied  that  such  collision  was 
inevitable,  unless  proper  means  were  immediately  resorted  to  by 
the  persons  having  charge  of  the  said  steamboat,  to  prevent  the 
threatened  disaster.  Whereupon,  the  said  steamboat  having  in  the 
mean  time  approached  within  speaking  distance,  the  said  R.  T. 
mate  as  aforesaid,  instantly  shouted  "  Port  your  helm  !  Stop  your 
engine  !  "  and  several  times  repeated  this  request,  and  continued 
to  do  so,  in  a  loud  and  audible  voice,  until,  about  a  minute  and  a 
half  after  first  hailing  the  said  steamboat,  she  struck  the  said 
schooner,  stem  on,  on  her  larboard  bow,  and  so  greatly  injured  the 
said  schooner  that  she  immediately  began  to  fill  with  water,  and,  in 
spite  of  the  most  strenuous  exertion  on  the  part  of  all  on  board  to 
keep  her  afloat,  she  soon  thereafter  sunk,  and  was,  with  her  cargo, 
totally  lost ;  her  officers  and  crew  having,  with  difficulty  saved  their 
lives,  by  getting  on  board  the  said  steamboat. 

Fourth.  That  the  said  steamboat  by  which  the  said  damage  had 
been  done,  proved  to  be  the  Vixen  aforesaid,  under  the  command 

of  G.  H.  as  master  thereof,  and  being  of  about tons  burthen, 

bound  on  a  voyage  from  Buffalo  aforesaid  to  Detroit.  That  at  the 
time  when  her  lights  were  first  discovered  from  the  Sylph  as  herein- 
before mentioned,  the  Sylph  carried  a  light  suspended  from  the 
outer  end  of  her  bowsprit,  which  remained  there  until  she  was 
struck  by  the  Vixen  ;  and  although  there  was  considerable  haze  on 
the  water,  the  said  light  could  easily  have  been  seen,  and,  if  she 
kept  a  good  lookout,  must  have  been  seen  by  her  at  the  distance  of 
half  a  mile,  or  at  least  of  a  quarter  of  a  mile,  and  in  season  to  have 
enabled  her  to  give  way  for  the  said  Sylph  as  she  was  bound  to  do, 
and  thereby  to  prevent  a  collision  therewith. 

Fifth.  That  if,  at  the  time  the  said  Vixen  was  first  hailed  from 
the  Sylph,  and  thenceforth,  she  had  had  a  proper  watch  on  deck, 


LIBEL  —  COLLISION  OF  VESSELS   UPON  THE   LAKES.       xciii 

the  warning  given  by  the  mate  of  the  Sylph  as  hereinbefore  men- 
tioned must  have  been  distinctly  heard  on  board  the  Vixen  in  season 
to  have  enabled  her,  by  putting  her  helm  to  port,  to  pass  the  Sylph 
in  safety ;  or,  by  immediately  stopping  her  engine,  greatly  to  dimin- 
ish the  violence  of  the  blow.  But  instead  of  so  doing,  the  said 
steamboat  Vixen  kept  on  her  previous  course ;  and  although  she 
was  running  at  the  rate  of  twelve  knots  an  hour,  her  speed  was  not 
slackened  ;  and  the  aforesaid  G.  H.  master  of  the  said  Vixen, 
admitted  to  the  aforesaid  R.  T.  mate  of  the  Sylph,  soon  after  the  said 
R.  T.  got  on  board  the  Vixen,  that  her  engine  had  not  been  stopped. 

Sixth.  That  at  the  time  when  the  danger  of  a  collision  between 
the  said  vessels  was  first  perceived  as  aforesaid  from  the  Sylph,  it 
was  impossible  for  her  to  get  out  of  the  way  of  the  said  Vixen  ;  nor 
were  there  any  means  to  which  she  could  with  propriety  have  re- 
sorted, for  that  purpose. 

Seventh.  That  at  the  time  of  the  aforementioned  loss  of  the  said 
schooner  Sylph  and  her  cargo,  the  libellant  was  the  true  and  lawful 
owner  of  the  said  schooner,  and  of  her  said  cargo  ;  and  that  the 

said  schooner  was  of  the  value  of dollars,  and  the  said  cargo 

was  of  the  value  of dollars  or  thereabouts ;  and  that  by  rea- 
son of  the  careless,  negligent,  unskilful,  and  improper  management 
of  the  said  steamboat  Vixen,  and  of  the  collision  thereby  occasioned 
of  the  said  steamboat  with  the  said  schooner  Sylph,  the  libellant 
hath  sustained  damages  to  the  amount  of dollars  or  there- 
abouts, for  which  he  claims  reparation  in  this  suit. 

Eighth.  That  all  and  singular  the  premises  are  true. 

Wherefore  the  libellant  prays  that  process  in  due  form  of  law 
may  issue  against  the  said  steamboat,  her  engine,  machinery,  boats, 
tackle,  apparel,  and  furniture  ;  and  that  this  Honorable  Court  will 
pronounce  for  the  damages  aforesaid,  and  decree  the  same  to  be 
paid  with  costs,  and  for  such  other  and  further  relief  and  redress  as 
to  right  and  justice  may  appertain,  and  the  Court  is  competent  to 

give  in  the  premises. 

(Signed)     A.  B.  Libellant. 

G.  H.  Proctor. 

On  the day  of ,  appeared  personally 

A.  B.  the  above  named  libellant,  and  was 
sworn  to  the  truth  of  the  foregoing  libel. 

Before  me  J.  K.  Clerk  [or  Commissioner]. 


APPENDIX. 


For  damage  by  collision,  a  suit  in  rent  and  in  personam  against 
the  offending  ship  and  the  master,  or  a  suit  in  personam  against  the 
master  or  the  owner,  may  also  be  maintained  ;  and  there  can  be 
little  difficulty  in  adapting  the  foregoing  precedent  to  either  of  these 
forms  of  remedy. 


INDEX 


THE   FIGURES   REFER  TO   THE   SECTIONS. 


ACT  OF  GOD, 

for  losses  by,  common  carriers  are  excused,  46,  67,  148,  et  seq. 

how  it  differs  from  "  inevitable  accident,"  154. 

is  accident  produced  alone  by  physical  causes,  154,  168. 

term  vis  major,  used  in  the  same  way  in  the  civil  law,  155. 

also  the  term  casus  fortuities,  155. 

loss  by  fire,  otherwise  than  lightning,  not  the  act  of  God,  156-160. 

freezing  of  canals,  an  interposition  of  vis  major,  160. 

to  excuse  the  carrier  for  losses  by  act  of  God,  they  must  in  no  degree 
be  connected  with  human  intervention,  154,  168-187,  188-200. 

And  see  Perils  of  the  Sea. 
ACTIONS. 

See  Declaration. 

of,  against  carriers,  418-521. 

against  common  carrier  for  refusing  to  receive  and  carry  goods,  418. 

case  the  proper  action  for  such  refusal,  and  of  the  declaration,  418. 

for  loss  of  goods,  may  be  ex  contractu,  or  ex  delicto,  422,  462. 

And  see  Admiralty. 

Action  on  the  case  for,  423  -  434. 

misjoinder  and  non-joinder  of  parties  in,  less  serious  than  in  assump- 
sit,  428,  435,  517,  591. 

carrier's  undertaking,  may  be  set  forth  less  formally  in,  than  in  as- 
sumpsit,  428,  429,  440,  441. 

declaration  in,  may  contain  a  count  in  trover,  430-434. 

Action  of  assumpsit  for  loss  of  goods,  434. 

common  money  counts  may  be  joined  in  declaring  in,  435. 

survives  to  the  executor,  435,  593. 

trover  cannot  be  joined  in  declaration  in,  435. 


774  INDEX. 

ACTIONS,—  Continued. 

but  assumpsit  will  lie  when  trover  will  lie,  441,  444. 

as  to  the  distinctive  character  of  declaration,  whether  in  tort  or  on 

contract,  436-440, 591. 

as  to  the  allegations  in  declaration,  440-451, 592. 
trivial  variation,  in  declaring  on  special  contract,  fatal,  441,  443. 
where  there  is  a  contract  in  the  alternative,  declared  on,  442. 
allegation  in  respect  to  quantity  and  quality  of  the  goods,  447. 
of  non-delivery,  in  reasonable  time,  448. 
variance  between  allegation  and  evidence  as  to  termini,  449. 
pleading  to  the  declaration  in  action  on  the  case  and  in  assumpsit, 

451-461. 

statute  of  limitations,  460. 
evidence,  461-482. 
And  see  Evidence. 
of  the  parties  to  sue,  491  -  513. 
And  see  Consignor  and  Consignee. 
parties  to  be  sued,  513-521. 
And  see  Agent,  —  Master  of  Vessel. 

against  passenger  carriers,  for  refusing  to  receive  a  passenger,  590. 
and  for  their  negligence,  or  misconduct,  591. 
and  allegation  in  declaration,  592. 
which  may  be  in  case  or  assumpsit,  591. 
against  passenger  carriers,  does  not  survive  to  executor,  unless,  &c., 

593  -  602. 

And  see  Executors  and  Administrators. 
for  injury  by  collision  of  carriages,  trespass  lies,  602. 
unless  done  by  carrier's  servant,  603. 
then  the  action  must  be  case,  603. 
And  see  Trespass. 
infants  sue  by  next  friend,  608. 
ADMIRALTY, 

courts  of,  have  jurisdiction  over  losses  of  goods  by  carriers  by  sea, 

419-422,  486. 
also  over  personal  injuries  committed  upon  passengers  by  sea,  during 

the  voyage,  610,  et  seq. 
whether  proceedings  in,  for  injury  to  goods,  &c.,  should  be  in  the 

nature  of  contract  or  tort,  420,  610  n.  4. 
jurisdiction  of  courts  of,  in  cases  of  collision  of  vessels,  610. 
And  see  Passenger  Carriers  by  Water. 
AGENT. 

carriers  of  goods  liable  for  the  negligence  and  misfeasance  of  their 

agents  and  servants,  47,  50,  91,  638. 
unless  the  owner  of  the  goods  contracts  exclusively  with  the  agent  or 

servant,  91,  574. 


INDEX.  775 

AGENT,  —  Continued. 

And  see  Wagoner,  Stage-Coaches,  Ferrymen,  Steamboats. 

carriers  employed  by  an  agent  of  the  owner  of  the  goods,  are  respon- 
sible to  the  owner,  98,  466,  494. 

whether  the  name  of  the  owner  is  disclosed  by  the  agent  or  not,  98, 
466,  494. 

a  notice  to  agent,  notice  to  principal,  and  vice  versa,  see  Notices. 

delivery  of  goods  to,  a  delivery  to  the  carrier,  see  Delivery  of  Goods. 

not  a  competent  witness  in  an  action  against  carrier,  469. 

not  liable  to  be  sued  by  the  owner  of  goods  lost,  while  in  carrier'! 
employment,  513,  514,  516. 

unless,  &c.  515. 

exception  as  to  master  of  vessel,  518,  521. 

passenger  carriers  liable  for  acts  of  their  drivers  and  other  agents, 
572  -  580. 

quare,  whether,  in  a  certain  case,  the  driver  of  a  vehicle  acts  as  the 
agent  of  the  owner  of  it,  575,  604,  667. 

where  one  agent  of  a  transportation  company  is  injured  by  another  of 
the  company's  agents,  576-580. 

injury  received  by  a  driver  of  vehicle  in  consequence  of  its  being  not 
road-worthy,  579. 

for  injury  by  collision  of  carriages,  &c.  when  by  the  driver,  case  the 
proper  remedy  against  the  employer,  603. 

when  by  principal,  trespass  may  be  brought,  602. 

And  see  Trespass. 
AGISTERS  OF  CATTLE, 

are  within  the  rule  of  responsibility  for  ordinary  negligence,  52. 

whether  they  have  alien  on  the  cattle  for  pasturage  consumed,  66,  note. 
ANIMALS. 

See  Living  Animals. 
ASSUMPSIT, 

in  action  of,  against  carriers,  the  rule  as  to  burden  of  proof,  see  Evi- 
dence, Actions,  Declaration. 

when  against  a  carrier  without  hire,  for  money  had  and  received,  is 
not  proper,  39. 

BAGGAGE, 

of  passengers  in  stage  coaches,  rail  cars,  steamboats,  &c.  is  in  the 
custody  of  the  owners  of  such  conveyances  as  common  carriers, 
107-121,209,  317-323,571. 
And  see  Responsibility  of  Common  Carriers. 
not  necessary  that  a  distinct  sum  should  be  paid  for  conveyance  of 

baggage,  107,  110,  112. 

nor  need  actual  payment  of  the  fare  be  proved,  110. 
I 


776  INDEX. 

BAGGAGE,  —  Continued. 

nor  is  entry  upon  the  way-bill  necessary,  111. 

hackney  coachmen  accustomed  to  carry  baggage,  subject  to  same 

rules,  112. 

the  owner  of  the  baggage  being  present,  or  sending  a  servant  to  look 
after  it,  does  not  exempt  the  carrier  from  liability  for  its  loss,  113, 
322. 

but  it  must  be  fully  in  the  carrier's  custody,  113,  322. 
must  be  safely  delivered  to  the  owner  on  arrival,  114,  317,  318,  319, 

571. 

but  must  be  demanded  by  the  owner  in  a  reasonable  time,  114,  320. 
the  carrier  liable  for  a  wrong  delivery,  on  forged  order,  321,  324,  327. 
such  a  delivery  is  a  conversion  of  the  property,  324  -  327. 
no  passenger  compelled  to  expose  himself  in  a  crowd  in  order  to  claim 

it,  114. 

tho  liability  of  the  carrier  for  its  safety  does  not  extend  beyond  ordi- 
nary baggage,  115. 

and  it  never  includes  merchandise,  115. 
nor  a  large  sum  of  money,  115. 
includes  such  articles  as  are  necessary  for  the  traveller's  convenience, 

115. 
or  for  his  amusement,  as  a  gun  or  fishing  tackle,  also  a  watch  and  a 

reasonable  amount  of  money,  115. 
jury  to  decide  as  to  what  are  proper  articles  of  baggage  under  the 

particular  circumstances,  116. 
notice  that  "  all  baggage  is  at  the  risk  of  the  owners,"  of  no  validity, 

238-245. 
And  see  Notices. 

if  the  fare  is  not  paid,  the  baggage  may  be  kept  till  it  is,  375,  609. 
but  the  lien  does  not  extend  to  the  passenger  himself,  or  the  clothes 

he  has  on,  375,  609. 
And  see  Lien. 

as  to  the  competency  of  the  owner  of  a  trunk  or  bag  lost,  as  a  wit- 
ness to  prove  the  nature  and  value  of  the  contents,  475-482. 
BAILMENT, 

general  view  of  law  of,  1  - 17,  348. 

includes  law  of  carriers,  2. 

diversity  of  opinion  respecting,  formerly,  3. 

unsettled  by  the  common  law,  till  reign  of  Anne,  3,  68. 

several  definitions  of,  4. 

involves  the  question  of  responsibility  for  neglect,  5. 

And  see  Negligence. 

several  sorts  of,  13-16. 

most  simple  division  of,  15. 


INDEX.  777 

BARGEMEN, 

as  common  carriers,  79. 
BILL  OF  LADING, 

as  to  the  exception  in,  of  "  perils  of  the  sea,"  166,  167,  169,  et  seq. 
180,  226. 

and  the  "  perils  of  the  river,"  168,  226. 

the  nature  of,  223,  308,  464. 

transferable  by  indorsement,  508. 

modern  English  form  of,  223. 

not  controlled  by  a  parol  agreement,  228. 

how  far  construction  of,  is  subservient  to  usage,  228-231. 

between  shipper  and  ship  owner,  not  conclusive  as  to  quantity  of  mer- 
chandise shipped,  231. 

privilege  of  re-shipping  in,  does  not  discharge  carrier  from  responsi- 
bility, till  the  goods  delivered  at  destined  port,  227. 

stipulating  for  the  delivery  in  a  prescribed  time,  no  cause  of  delay  can 
be  pleaded,  294. 

master,  must  deliver  to  the  persons  mentioned  in,  298. 

And  see  Delivery, 

difference  between,  and  charter-party,  in  respect  to  freight,  395. 

stipulation  in,  for  delivery  on  payment  of  freight,  397. 

And  see  Freight. 

to  whom  the  master  and  owners  of  vessel  are  liable,  on  the  contract, 
by,  502-513. 

both  master  and  owners  of  vessel  bound  by,  519,  520. 
BONA  PERITURA, 

the  obligation  in  respect  to  safe  transportation  of,  25,  210,  211. 
BURDEN  OF  PROOF. 

See  Evidence. 


CANALS, 

persons  engaged  as  boatmen  upon,  are  common  carriers,  8. 

and,  therefore,  without  express  authority,  cannot  dispose  of  property 
of  which  they  are  the  bailees,  81. 

regulation  of  canal  boats  in  New  York,  89,  630,  637. 

freezing  of,  an  interposition  of  vis  major,  160. 
CARE  AND  DILIGENCE. 

See  Negligence. 
CARMEN, 

employed  in  cities  and  towns,  their  liability  as  common  camera,  74. 

CARRIERS, 

law  of,  as  a  branch  of  the  law  of  bailments,  1  -  17. 
the  most  numerous  class  of,  1,  56. 


778  INDEX. 

CARRIERS,—  Continued. 

See  Carrier  without  Hire,  Carrier  for  Hire  not  a  Common  Carrier, 
Common    Carrier,    Passenger    Carriers,    Passenger    Carriers    by 
Water,  Navigation. 
CARRIER  WITHOUT  HIRE, 

in  the  civil  law,  Mandatarius,  or  Mandatary,  I,  17. 

the  person  by  whom  employed,  the  Mandator,  1. 

liability  of,  17-45. 

Coggs  v.  Bernard,  cited  and  commented  on  as  the  leading  case  re- 
specting, 18-21. 

without  any  special  undertaking,  is  bound  not  to  be  guilty  of  gross 
negligence,  20. 

liability  of,  same  as  that  of  a  depositary,  21. 

what  is  gross  negligence  in  the,  21-37. 

And  see  Negligence. 

•where  the  subject  of  the  bailment  is  living  animals,  24,  34. 

where  it  is  a  perishable  commodity,  25. 

care  must  be  proportioned  to  the  chance  of  loss,  in  every  case,  26. 

not  liable  for  goods  stolen  from  him,  except  when,  28-32. 

whether  liable  if  he  keeps  the  goods  with  the  same  care'  as  he  keeps 
his  own,  32-36. 

liability  of  the  mandatary,  if  he  undertakes  what  requires  skill,  36. 

his  own  acts  and  declarations,  how  far  evidence  of  his  care  and  hon- 
esty, 29,  30. 

whether  his  liability  may  be  enlarged  or  qualified  by  the  special  terms 
of  his  undertaking,  20,  37. 

burden  of  proof  in  actions  against,  38-41. 

his  right  to  sue  for  property  entrusted  to  him,  41. 

no  right  of  lien  on  thing  bailed,  41,  43. 

why  actions  against,  have  not  been  common,  44. 

as  to  the  obligation  of  mandator  arising  from  the  contract  of  mandate, 
1,42. 

and  that  of  mandatary,  18,  et  seq. 
CARRIER  FOR  HIRE  NOT  A  COMMON  CARRIER, 

thet  class  of  contracts  to  which  his  belongs,  1,  47. 

bound  to  ordinary  diligence  and  responsible  for  ordinary  neglect,  45  -  59. 

difference  between,  and  a  common  carrier,  46. 

And  see  Common  Carrier. 

a  good  defence  by  him,  that  the  goods  were  lost  by  unavoidable  acci- 
dent, 47. 

not  liable  for  loss  by  robbers,  47. 

not  for  any  taking  from  him  by  force,  47. 

difference  between  robbery  by  force,  and  a  secret  theft,  48. 

a  loss  by  secret  theft,  primd  facie  proof  of  the  want  of  proper  care,  48. 


INDEX.  779 

CARRIER  FOR  HIRE  NOT  A  COMMON  CARRIER,—  Continued. 

whether  the  mere  fact  of  loss,  is  such  presumptive  proof,  49,  50. 

liability  for  not  stopping  a  leak  in  a  cask,  53. 

for  the  intoxication  of  the  servant  employed,  54. 

for  leaving  the  cart  unprotected  in  the  street,  55. 

when  the  owner  of  the  goods  conduces  to  the  loss,  the  carrier  not 
liable,  57. 

liable  for  injury  to  the  goods,  though  afterwards  they  were  destroyed 
without  his  fault,  58. 

his  liability  as  increased  or  diminished  by  special  contract,  59,  60. 

an  express  promise  by  him  to  carry  safely,  is  but  the  implied  under- 
taking to  carry  without  negligence,  60. 

as  to  the  burden  of  proof,  in  actions  against,  61-65. 

promise  by,  to  pay  for  goods  lost,  admission  of  liability,  65. 

Qiuere.    Whether  a  carrier  for  hire,  not  a  common  carrier,  has  a  lien 
on  the  goods  for  his  labor  ?  66. 

And  see  Lien  —  Common  Carriers. 
CASE, 

in  action  of,  against  carriers  not  common  caniers,  the  rule  as  to  burden 
of  proof,  38,  63. 

And  see  Evidence,  Actions,  Declaration. 
CHARTER-PARTY. 

a  delivery  of  goods  to  the  master  of  a  vessel  under  charter-party,  when 
not  a  delivery  to  ship  owner,  147. 

the  terms  of  a,  as  determining  whether  the  charterer  or  ship  owner 

has  a  lien  on  the  cargo  for  freight,  376,  384,  395-398. 
COLLISION  OF  VESSELS, 

injury  by,  as  within  the  exception  of  "  perils  of  the  sea,"  in  bills  of 
lading,  166,  167,  226. 

the  rule  as  to  apportionment  of  damages  in  case  of  injury  by,  from 
mutual  negligence,  in  the  admiralty  and  at  common  law,  633-643. 

the  important  question  in  case  of  injury  by,  643. 

owners  of  a  vessel  anchoring  at  an  improper  place,  liable  for  injury 
by,  643. 

anchorage  should  be  properly  taken  up,  644. 

as  to  proper  time  in  going  down  a  navigable  river,  645. 

duty  of  vessels  at  anchor  to  have  a  buoy  attached,  646. 

and,  as  to  the  duty  to  hang  out  lights,  647-650. 

duty  of  master  in  dark  and  foggy  nights,  in  order  to  avoid  collisions, 
650. 

rules  of  navigation  for  the  purpose  of  avoiding,  considered  and  ap- 
plied, 651-654. 

Trinity  House  rules  respecting,  652. 


780  INDEX. 

COLLISION  OF  VESSELS,  —  Continued. 

and  as  to  their  observance  in  this  country,  655,  662,  663. 

obligation  of  masters  of  steam-vessels  to  give  way  to  sailing  vessels, 
for  avoiding  collision,  656-660,  662,  663. 

rules  of  navigation  not  inflexible,  660  -  664. 

owners  of  a  vessel  running  afoul  of  another  liable,  though  they  have 
a  pilot  on  board,  664-667. 

of  the  liability  of  the  owners  of  a  vessel  for  the  negligence  of  the 
master  of  a  steamboat  having  the  vessel  in  tow,  667. 

of  the  evidence,  as  treated  in  courts  of  admiralty,  in  cases  of,  670. 

in  cases  of,  masters  of  both  vessels  bound  to  render  mutual  assistance, 

671. 
COMMON  CARRIER, 

difference  between,  and  a  private  carrier  for  hire,  46,  67,  et  seq. 

bound  against  all  events  but  the  act  of  God  and  the  public  enemy, 
46,  67. 

See  Act  of  God — Public  Enemy. 

liability  of,  when  limited  by  special  contract  reduced  to  that  of  a  paid 
private  carrier,  54,  225. 

And  see  Contract  —  Notices. 

who  are  common  carriers,  67-123. 

their  employment  of  a  public  nature,  68,  74. 

discrepancy  in  the  authorities  as  to  what  constitutes,  70-75. 

their  liability  as  extending  to  every  description  of  thing,  99-  123. 

And  see  Money,  Baggage,  Slaves,  Post-Masters. 

public  carriers  by  water,  are  common  carriers,  79-91. 

See  Carmen,  Truckmen,  Wagoners,  Stage  Coaches,  Railroads,  Steam- 
boats, Navigation,  Warehousemen,  Forwarding  Merchants. 

the  liability  of  a  common  carrier  continues,  until  the  goods  are  deliv- 
ered at  the  place  of  their  destination,  or  the  place  to  which  they  are 
directed,  95-98,  281,307. 

although  the  place  of  destination  is  beyond  that  to  which  he  is  accus- 
tomed to  carry,  95-98,  281,  307. 

what  is  a  delivery. 

See  Delivery  of  Goods. 

the  obligation,  of  a  common  carrier  to  receive  goods,  67,  123  -  129, 
356. 

the  extent  of  their  responsibility,  148-220. 

And  see  Responsibility  of  Common  Carriers. 

the  responsibility  of  common  carriers  by  water  as  limited  and  regulated 
by  statute,  90,  223. 

also,  of  that  of  those  by  land,  256,  257,  277. 

rights  of,  348-418. 

See  Possession,  Lien,  Freight. 


INDEX.  181 

COMPENSATION, 

right  of  common  carriers  of  goods  to  demand,  and  the  amount, 
124-129,  356. 

And  see  Lien. 

for  the  carriage  of  passengers,  525,  609. 
CONSIGNOR  AND  CONSIGNEE. 

by  which  of  the  two  an  action  against  carrier  for  the  loss  of  the  goods 
must  be  brought,  495-515. 

depends  on  the  relation  between  them,  495. 

where  the  entire  property  in  the  goods  is  in  consignor  he  presumed 
to  have  contracted  with  the  carrier,  495,  504. 

where  no  actual  sale  to  consignee  on  account  of  a  non-compliance 
with  statute  of  frauds,  the  consignor  the  party  to  sue,  496. 

when  goods  are  delivered  to  the  carrier  on  behalf  of  consignee,  and  he 
the  party  to  sue,  497. 

consignee  not  entitled  to  sue  unless  he  has  ordered  the  goods  to  be 
sent,  498,  505. 

exception  to  the  rule,  that  the  owner  of  the  goods  is  the  proper  person 
to  sue,  499. 

the  person  with  whom  the  carrier  contracts,  the  proper  person,  499. 

as  to  the  contradiction  of  the  presumption,  that  the  owner  of  the 
goods  is  the  proper  person,  500,  501. 

when  the  carrier  can  find  no  such  person  as  the  consignee,  502. 

to  whom  the  master  and  owners  of  a  vessel,  are  liable  on  the  con- 
tract of  a  bill  of  lading,  503  -  513. 

person  for  whose  use  the  contract  of  carriage  is  made,  506,  509. 

where  bill  of  lading  is  signed  in  blank,  and  subsequently  filled,  by 
consignor's  authority,  507. 

consignee  as  the  agent  of  the  owners  of  the  goods,  508. 

property  in  the  goods  passed  by  indorsement  of  bill  of  lading,  508. 

when  property  of  goods  shipped  to  order  of  consignee,  does  not  be- 
come vested  in  him,  511,  512. 
CONSTITUTION. 

a  law  of  a  state  requiring  masters  of  vessels  from  foreign  ports  to 
report  names  of  passengers,  &c.,  not  unconstitutional,  631. 

a  state  law  imposing  a  tax  on  alien  passengers  void,  as  unconstitu- 
tional, 632. 
CONTRACT. 

the  nature  of  a  carrier's  contract,  1  -  17. 

And  see  Carrier  without  Hire,  Carrier  for  Hire,  Common  Carrier. 

of  the  nature  of  the  contract  locatio  opens,  1,  47,  67. 

of  the  nature  of  the  contract  locatio  opcris  merditm  rchcndarum,  1, 
47,  67. 

of  the  nature  of  the  contract  locatio  custodies,  14, 45. 


782  INDEX. 

CONTRACT,  —  Continued. 

special  contract  enlarging  the  liability  of  a  carrier  without  hire,  37. 
special  contract  as  increasing  or  diminishing  the  liability  of  a  private 

carrier  for  hire,  59,  60. 
difference  between  a  gratuitous  undertaking  to  carry  goods,  and  one  to 

carry  them  safely,  20. 

obligation  of  mandator  arising  from  the  contract  of  mandate,  1,  42. 
of  the  mandatary,  18,  et  seq. 
special  contract,  or  acceptance  of  goods,  as  limiting  the  responsibility 

of  common  carriers  by  water,  55,  127,  220-280. 
such  contract  as  governing  the  common  law  responsibility,  220-232. 
opinion  contra,  of  Cowen,  J.,  221. 
contract  of  carriers  by  water,  the  bill  of  lading,  223. 
every  exception  must  be  contained  in  the  contract  itself,  226  a. 
the  special  contract  in  the  case  of  the  Lexington,  225,  and  App.  liv. 
does  not  exempt  from  liability  for  negligence,  225,  226. 
places  a  common  carrier  on  the  footing  of  a  private  carrier  for  hire, 

225,  226. 

for  the  privilege  of  transshipment,  227. 
in  writing,  not  controlled  by  parol  evidence,  228. 
on  a  contract  to  deliver  goods  in  a  prescribed  time,  no  cause  of  delay 

can  be  pleaded,  294. 
whether,  under  the  contract  of  carriage,  the  consignor  or  consignee 

the  proper  person  to  sue,  495-513. 
See  Notices,  Bill  of  Lading,  Consignor  and  Consignee,  Usage. 

DAMAGES, 

the  amount  of,  to  be  recovered  where  the  goods  entrusted  to  a  carrier 

are  not  delivered  according  to  his  undertaking,  482-491. 
as  a  general  rule,  the  measure  of,  their  value  at  the  place  of  destina- 
tion, 482. 

and  their  price  at  the  time  in  the  market,  488. 

an  acceptance  of  the  goods  short  of  the  place  of  destination,  no  bar 
to  an  action  for  damages  they  received  from  the  carrier's  negligence, 
before  such  acceptance,  490. 

rule  of  apportionment  of,  in  cases  of  collision  of  vessels,  in  the  admi- 
ralty and  at  common  law,  633,  et  seq. 
And  see  Collision  of  Vessels. 
DEATH, 

of  persons  by  accidents  on  railroads,  &c. 
See  Executors  and  Administrators. 
DECLARATION, 

form  of  the,  in  case  against  common  carrier  for  refusing  to  receive 
goods  for  conveyance,  481. 


INDEX.  783 

DECLARATION,  —  Continued. 

in  case,  for  the  loss  of  goods,  429,  n.  3. 

in  assumpsit,  for  same,  435,  n.  3. 

for  the  non-delivery  of  goods,  after  reasonable  time,  448,  n.  4. 

against  master  of  vessel  on  his  bill  of  lading,  for  loss  of  goods,  519, 
n.  4. 

against  passenger  carriers  for  bad  management,  &c.,  592,  n.  3. 
DELIVERY  OF  GOODS, 
^       FIRST,  to  a  carrier. 

the  carrier's  duty  to  receive  and  carry  goods,  123-  129. 

his  right  to  demand  compensation,  123  -  129,  356,  418. 

compensation  of  companies  incorporated,  as  provided  by  legislature, 
128. 

what  are  reasonable  grounds  for  the  carrier's  refusing  to  receive  goods, 
125,  356. 

the  English  rule  as  to  the  obligation  of  the  carrier  to  receive  goods, 
how  considered  in  this  country,  126. 

delivery  of  the  goods  to  the  carrier  the  commencement  of  his  respon- 
sibility, 129. 

what  is  a  sufficient  delivery  to  the  carrier,  129  -  148. 

a  delivery  to  an  agent  or  servant  of  the  carrier,  sufficient,  129,  137, 
138,  139,  146. 

a  carriage  delivered  on  the  drop  of  the  flat  of  a  ferry-boat,  a  sufficient 
delivery,  130. 

goods  delivered  to  a  warehouseman,  who  is  at  the  same  time  a  com- 
mon carrier,  the  responsibility  of  the  latter  attaches  to  him,  as  soon 
as  the  goods  are  deposited  in  his  warehouse,  131. 

so  of  a  wharfinger,  who  undertakes  to  convey  from  his  own  wharf, 
132. 

so  of  an  innkeeper,  if  he  is  at  the  same  time  to  act  as  common  carrier, 
133. 

but,  in  these  cases  if  the  goods  are  to  be  kept,  till  orders  from  the 
owner,  the  delivery  is  not  as  to  a  common  carrier,  134. 

and  such  persons  are  then  liable  only  as  ordinary  bailees  for  hire,  134. 

delivery  at  the  office  of  the  carrier,  sufficient,  135. 

not  necessary  that  the  goods  be  entered  on  the  freight  list,  136. 

when  left  after  the  usual  time  of  delivering,  if  they  are  received,  it  is 
sufficient,  136. 

delivery  at  any  other  than  the  usual  place,  sufficient,  if  accepted  by  an 
agent  there,  1,  37. 

but  goods  placed  in  the  carrier's  vehicle  without  his,  or  his  servant's 
knowledge,  is  no  bailment,  140. 

and  so,  if  the  owner  takes  charge  of  a  parcel  himself,  113,  140,  141. 

there  must  be  trust  and  confidence  in  the  carrier,  142. 


784  INDEX. 

DELIVERY  OF  GOODS,  —  Continued. 

goods  left  in  the  yard  of  an  inn,  not  a  delivery,  143. 

so,  to  an  unknown  person  on  a  wharf,  143. 

at  a  regular  receiving  house,  a  sufficient  delivery,  144. 

goods  left  near  a  canal  boat,  must  be  accompanied  with  a  notice  to  the 
master,  145. 

whether  delivery  to  the  master  of  a  vessel,  under  charter,  will  render 
the  owners  of  her  liable,  147. 

And  see  Charter-Party. 

SECONDLY,  by  a  carrier. 

delivery  by,  the  termination  of  his  responsibility,  280. 

delivery  must  be  made  at  the  place  to  which  the  goods  are  directed, 
281. 

though  such  place  is  beyond  the  place  to  which  the  carrier  is  accus- 
tomed to  carry,  95  -  98,  281,  307. 

and  though  the  carrier  has  stipulated  for  the  privilege  of  transshipment. 

See  Bill  of  Lading. 

but  carrier  may  be  otherwise  instructed,  281. 

the  goods  must  be  safely  delivered,  unless  carrier  excused  by  "  act  of 
God,"  &c.  282. 

and  must  not  only  be  carried  to  the  place  of  delivery,  but  actually 
delivered,  282. 

till  then,  the  carrier  has  no  claim  to  freight,  282. 

if  goods  are  injured  while  being  hoisted  from  the  carrier's  vessel,  he 
is  liable,  282. 

the  delivery  must  be  in  reasonable  time,  283-289. 

and  what  is  a  reasonable  time  depends  on  circumstances,  283,  294. 

goods  delivered  to  the  carrier  on  the  10th  of  one  month,  and  not  de- 
livered by  him  till  3d  of  following  month,  not  in  reasonable  time, 
284. 

for  non-delivery  of  an  account,  till  outlawed,  the  carrier  liable,  285. 

what  is  a  timely  delivery  of  money  at  a  bank,  286, 

the  effect  of  usage  as  to  the  proper  time  of  delivery,  286. 

after  the  termination  of  the  hours  of  business,  287. 

too  late  in  the  evening,  288. 

justifiable  causes  of  delay  in  delivery,  289. 

as  the  freezing  of  a  canal,  289. 

or  detention  of  ferry-boat,  by  high  wind,  &c.,  290. 

consignee  dead,  or  absent,  or  refusing  to  receive  the  goods,  291. 

and  the  duty  of  carrier  in  such  cases,  291. 

detention  of  master  of  a  vessel,  by  revenue  officers,  292. 

or  other  officers  of  government,  293. 

if  the  engagement  is  to  deliver  in  a  prescribed  time,  no  cause  of  delay 
can  be  pleaded,  294. 


INDEX.  785 

DELIVERY  OF  GOODS,—  Continued. 

in  the  absence  of  usage  or  agreement,  the  residence  of  consignee  the 
place  of  delivery,  295-298. 

or  actually  to  the  person,  319. 

master  of  vessel  must  deliver  to  the  persons  named  in  bill  of  lading, 
298,  299,  305. 

in  absence  of  usage,  lading  goods  on  a  wharf  not  a  delivery,  300  - 
302. 

when  the  carrier's  warehouse  is  the  usual,  and  a  proper  place  of 
delivery,  301-305. 

and  the  carrier  then  holds  the  goods,  liable  only  as  warehouseman, 
301-305. 

usage  as  justifying  delivery  on  a  wharf,  305  -309,  316. 

and  on  board  a  lighter,  308. 

wharf,  by  the  established  usage  of  trade,  the  proper  place  of  delivery 
of  goods  in  vessels  from  foreign  countries,  309-312,  316. 

usage  as  justifying  a  retention  of  the  goods,  till  sent  for,  312. 

due  and  reasonable  notice  in  such  cases  to  be  given  to  the  owner  or 
consignee,  313-315. 

carrier  bound  to  continue  his  care,  till  notice  has  been  received,  315. 

unless  usage  to  the  contrary,  116. 

what  is  sufficient  notice,  315. 

delivery  to  agent  of  owner  or  consignee  sufficient,  323. 

it  must  not  be  to  a  wrong  person,  315. 

delivery  to  a  wrong  person,  a  conversion  of  the  property,  324-327. 

as  to  a  proper  delivery  of  baggage,  see  Baggage. 

what  justifies  a  non-delivery,  see  Non-delivery. 
DEVIATION, 

from  voyage. 

See  Responsibility  of  Common  Carriers. 

Qu&re.     Suppose  a  carrier  vessel  to  deviate  from  her  direct  and  pro- 
per course,  and  the  goods  are  lost ;  is  the  carrier  excused  by  show- 
ing that  they  would  have  been  lost,  if  the  vessel  had  not  deviated  ? 
203,  209. 
DUNNAGE, 

obligation  respecting,  of  shipmasters,  and  owners,  212. 

EVIDENCE. 

See  Assumpsitp  Case,  Trover. 

as  to  declarations  of  a  carrier,  in  case  of  a  loss,  how  far  they  are 

evidence,  as  a  part  of  the  res  gcstte,  of  his  care  and  honesty,  29, 

30,  40,  64,  468. 
how  far  the  keeping,  by  a  gratuitous  bailee,  of  property  entrusted  to 

him,  with  the  same  care  as  his  own,  is  evidence  of  proper  care, 

32  -  36. 


786 


INDEX. 


EVIDENCE,  —  Continued. 

as  to  the  burden  of  proof  in  actions  against  carriers  without  hire, 

38,  41,  470. 

the  same  in  actions  against  private  carriers  for  hire,  61  -65,  470. 
of  the  prima  facie  presumption  of  negligence,  48-52,  202. 
promise  to  pay  for  the  goods  lost,  evidence  of  carrier's  liability,  65. 
in  case  of  loss  by  common  carriers,  467  -  470. 
burden  of  proof  is  on  them  to  exempt  them  from  liability  for  their 

default,  202,  472. 

parol  evidence  of  the  custom  of  navigation,  in  a  lake  or  river,  admis- 
sible, 228. 

but  not  to  contradict  a  bill  of  lading,  228,  229,  230. 
burden  of  proof  on  the  carrier,  that  the  owner  of  the  goods  has 

knowledge  of  a  notice  limiting  carrier's  liability,  247. 
the  most  usual  evidence  in  such  cases,  248-251. 
but  when  a  knowledge  of  the  notice  is  proved,  the  burden  of  proof  is 

on  the  owner  of  the  goods,  to  show  negligence,  &c.  in  the  carrier, 

276,  473. 

evidence  of  the  notices  of  common  carriers. 
See  Notices. 

as  to  who  are  common  carriers,  69  -  99,  462,  463. 
the  receipt  of  carrier  as  evidence  of  his  liability,  464. 
also  his  bill  of  lading,  464. 
And  see  Sill  of  Lading. 
as  to  delivery  to  the  carrier,  465,  466. 
And  see  Delivery  of  Goods. 
of  the  value  of  goods  lost  by  the  carrier,  474. 
as  to  the  admission  of  the  oath  of  the  owner  of  a  trunk,  &c.  lost,  to 

prove  the  nature  and  value  of  the  contents,  475  -  482. 
as  to  amount  of  damages  to  be  recovered. 
See  Damages. 
burden  of  proof  upon  carriers  of  passengers,  to  exempt  them  from 

liability,  569. 

how  courts  of  admiralty  are  governed  in  relation  to,  in  cases  of  collis- 
ion of  vessels,  669. 
in  such  cases,  testimony  of  persons  on  board  admitted  ex  necessitate 

rei,  670. 
EXECUTORS  AND  ADMINISTRATORS, 

action  of  assumpsit  against  carriers  for  loss  of  goods  survives  to,  435. 
but  not  against  passenger  carriers,  for  bodily  injury  to  the  testator  or 

intestate,  593. 
unless  the  bodily  injury  has  been  an  injury  to  the  estate  of  deceased, 

594,  595. 
when  an  injury  does  result  from  bodily  injury,  giving  executor  right 

to  sue,  596  -  600. 


INDEX.  787 

EXECUTORS  AND  ADMINISTRATORS,  —  Continued. 

the  death  of  a  human  being  no  cause  of  action,  by  his  executor,  600. 

how  and  where  made  otherwise  by  statute,  600,  601. 
EXPRESS  FORWARDERS, 

carriers  employed  by,  liable  to  owners  of  goods  lost  by  them,  whether 
the  owners  are  known  to  them  or  not,  98,  466,  494. 

And  see  Agent. 

FERRYMEN, 

liable  as  COMMON  carriers,  82,  109,  130,  165,  290,  588. 
owner  of  private  ferry  may  render  himself  so  liable,  82. 
unless  the  boatman  is  made  the  special  bailee,  82,  147,  588. 
as  carriers  of  passengers,  537  a. 
And  see  Passenger  Carriers. 
FORWARDING  MERCHANTS, 
who  are,  75. 

extent  of  their  liability,  Hi. 

having  interest  in  the  freight,  &c.  liable  as  common  carriers,  75,  134. 
See  Delivery  of  Goods  —  Express  Forwarders. 
FRAUD, 

whether  gross  negligence  is  equivalent  to,  10,  35. 

is  committed,  by  a  carrier,  in  concealing  intentionally  the  nature  and 

value  of  the  goods  delivered  to  him,  99,  115,  116. 
and  persons  sending  goods,  bound  not  to  fraudulently  conceal  their 

value,  &c.,  258. 
by  a  representation  of  a  certain  value,  the  owner  cannot  recover  beyond 

that  value,  259,  260. 

any  disguise  of  the  value  of  the  contents  of  a  box,  fraudulent,  261. 
as  by  attempting  to  have  it  carried  free  of  reward,  or  for  a  small 

reward,  262,  263. 
where  no  fraud  is  intended,  no  disclosure  is  necessary,  unless  inquiry 

is  made,  264,  266. 

duty  of  the  owner  of  the  goods  to  make  inquiry,  264. 
a  misrepresentation  must  be  pleaded,  and  cannot  be  given  in  evidence 

under  the  plea  of  "  not  guilty,"  265. 

or  the  acceptance  of  the  goods  for  the  purpose  of  conveyance,  tra- 
versed, 265. 
QueBre,  whether  the  carrier  is  bound  to  inquire  as  to  the  value  of  the 

goods,  when  he  has  given  no  notice,  266. 
if  goods  are  fraudulently  obtained  by  the  person  who  delivers  them  to 

a  carrier,  the  carrier  may  prove  that  his  bailor  had  no  title  to  them, 

336,  337. 
the  possession  of  goods  fraudulently  obtained  from  a  common  carrier, 

will  not  deprive  him  of  his  lien,  374. 


788  INDEX. 

FRAUD,  —  Continued. 

And  see  Lien. 

where  the  contents  of  boxes  or  trunks  are  embezzled  by  a  carrier,  the 
owner  competent  to  testify  to  their  nature  and  value,  in  odium  spo- 
liatoris,  477,  478. 
FREIGHT, 

carrier  no  claim  to,  till  delivery  of  the  goods,  282. 

And  see  Delivery  of  Goods. 

of  carrier's  right  of  action,  for  recovery  of,  391  -  418. 

its  meaning,  391. 

passage  money,  same,  as,  391. 

amount  of,  as  fixed  by  agreement,  392,  393. 

amount  of,  recoverable  on  quantum  meruit,  392,  402. 

construction  of  agreement,  for,  in  the  conveyance  of  living  animals, 
394. 

as  due  in  respect  of  charter-party,  395,  396. 

merchant  charterer  liable  for,  though  the  terms  of  bill  of  lading  are 
for  delivery  "  on  payment  of  freight,"  397. 

not  due  till  voyage  performed,  399. 

and  till  delivery  of  goods,  unless,  &c.,  400. 

rule  as  to  payment  of,  in  cases  of  capture  and  re-capture,  401. 

as  to  amount  of,  in  cases  of  transshipment,  in  consequence  of  disabil- 
ity of  vessel,  402,  403. 

the  doctrine  as  to  payment  of,  pro  rata  itineris  peracti,  332,  404-408. 

right  of  merchant  to  discharge  himself  from  payment  of,  by  abandon- 
ing goods,  408  -  415. 

as  to  set-off,  in  action  for  recovery  of,  415. 

in  respect  to  illegal  voyages,  416,  417. 

HACKNEY  COACHMEN, 

liability  of,  as  common  carriers  of  baggage. 

See  Baggage. 

for  injury  to  passenger  by  negligence  in  driving,  insecure  vehicle,  &c. 

See  Passenger  Carriers. 
HORSE, 

load  upon,  common  carrier  of,  liable  for,  109. 

See  Passenger  Carriers. 
HOYMEN, 

as  common  carriers,  79. 

INNKEEPERS, 

their  liability  like  that  of  common  carriers,  69,  133. 
rights  of,  363  -  368,  530. 


INDEX.  789 

JETTISON, 

when  master  and  owners  of  vessel  liable  for,  215  -  219. 
in  respect  to  general  average,  219. 

LAKES, 

in  the  United  States. 

Admiralty  jurisdiction,  how  extended  over,  610  o,  641. 
LETTER. 

See  Postmasters. 
LIEN. 

carriers  without  hire,  no  claim  of,  41,  43. 

Qu&re,  as  to  private  carriers  for  hire,  warehousemen,  and  other  pri- 
vate bailees,  66. 

common  carriers  entitled  to,  356. 
by  land  and  by  water,  369. 

right  of,  derived  from  common  law,  usage,  or  agreement,  66,  n.,  357. 
is  either  particular  or  general,  357. 
common  carrier  entitled  only  to  a  particular  lien  on  the  goods  in  his 

possession,  357,  359,  609. 

may  have  a  general  lien,  in  virtue  of  custom  or  usage,  358. 
so  by  express  stipulation,  360-362. 

but  no  such  stipulation  affects  the  right  of  stoppage  in  transilu,  362. 
Qiuere,  whether  the  carrier  can  retain  possession  of  the  goods  for  the 

unpaid  carriage,  when  they  are  not  the  property  of  Jus  bailors, 

363  -  368,  and  see  335  -  338. 
possession  of  the  goods  once  acquired  by  the  carrier,  can  be  retained 

until  due  remuneration,  if  the  carriage  of  them  be  dispensed  with,  368. 
possession  once  parted  with,  the  lien  is  lost,  370  -  374,  609. 
if  possession  be  put  an  end  to  by  fraud,  the  lien  revives,  374. 
it  extends  to  baggage  of  passengers,  375,  609. 
but  not  to  the  passenger  himself,  or  the  clothes  he  has  on,  375,  609. 
when  owner  of  vessel,  under  charter-party ,  has  lien  on  cargo,  376,  381 . 
none  exists  in  virtue  of  unliquidated  damages,  381,  382. 
nor  for  a  breach  of  covenant,  383. 
it  attaches,  whether  payment  of  freight  is  to  be  before,  or  concomitant 

with,  delivery  of  cargo,  384. 

may  exist  in  connection  with  a  special  contract,  385-391. 
unless,  &c.  lb. 

of  passenger  carriers  on  baggage,  609  a. 
LIMITATION  OF  COMMON  CARRIER'S  RESPONSIBILITY. 

See  Contract,  Notices,  Statute. 
LIQUIDS, 

how  far  a  carrier  is  bound  to  provide  against  loss  of,  in  transportation 

of,  53,  211. 


790  INDEX. 

LIVING  ANIMALS. 

where  the  subject  matter  of  the  trust  to  a  bailee,  is  living  animals  of 
the  brute  creation,  24,  34,  52. 

a  common  carrier  liable  as  such  for  their  safe  transportation,  214. 

but  not,  if  lost  by  the  perils  of  the  sea,  214. 

the  rule,  as  to  freight,  in  the  transportation  of,  by  water,  394. 
LOCATIO  OPERIS,  &c. 

See  Contract. 
LUGGAGE. 

See  Baggage. 

MAIL  CONTRACTOR, 

not  liable  to  the  owner  of  a  letter  containing  money  transmitted  by 

mail,  and  lost  by  contractor's  agents  in  carrying  the  mail,  121. 
See  Postmasters. 
MANDATOR,  AND  MANDATARY. 

See  Carrier  without  Hire. 
MASTER  OF  VESSEL, 

liable  for  loss  of  goods,  518-521. 
but  the  goods  must  be  fully  in  his  custody,  518. 
And  see  Delivery. 

both  he  and  owners  bound  by  bill  of  lading,  519,  521. 
And  see  Bill  of  Lading. 

his  authority  over  passengers,  and  his  duties  towards  them,  621,  622. 
And  see  Passenger  Carriers  by  Water. 
MISFEASANCE, 

difference  between,  and  negligence,  12,  269. 
MONEY, 

carriers  of,  without  hire,  liable  for  gross  negligence,  27-34. 
carriage  of,  by  common  carriers,  renders  them  liable  for  loss  when 

not  occasioned  by  the  act  of  God  or  the  public  enemy,  100  - 107. 
that  is,  when  they  hold  themselves  out  to  the  public,  or  are  accus- 
tomed to  carry  money,  100  -  107,  209. 
money  arising  from  the  sale  of  goods  in  the  hands  of  the  carrier, 

which  he  is  authorized  to  sell,  104-107. 
the  money,  in  such  case,  like  a  return  cargo,  for  which  the  carrier  is 

responsible  as  common  carrier,  104  -  107. 
usage  of  trade  may  authorize  the  carrier  to  act  as  agent  for  the  sale 

of  goods,  and  to  receive  the  money,  104-  107. 
act  as  carriers  in  going  with  the  goods,  as  factors  in  selling  them,  and 

as  common  carriers  in  bringing  back  the  money,  104  -  107. 
the  usage  to  authorize  a  carrier  to  sell  the  goods,  and  receive  the 

money,  must  be  certain,  uniform,  and  well  established,  106. 
what  is  a  timely  and  proper  delivery  of,  by  the  carrier  of  it,  to  a 
bank,  286. 


INDEX.  791 

MONEY,  —  Continued. 

of  a  tender  of,  to  common  carriers  for  the  carriage  of  goods,  418. 
See  Baggage,  Postmasters,  Mail  Contractor. 

NAVIGATION, 

persons  employed  in,  when  common  carriers,  79-91. 

See  Bargemen,  Hoymen,  Canals,  Ferrymen,  Steamboats,  Ship  Own- 
ers. 

rules  of,  for  avoiding  collision  of  vessels,  considered  and  applied, 
647-671. 

See  Passenger  Carriers  by  Water  —  Collision  of  Vessels. 
NEGLIGENCE,  OR  NEGLECT, 

responsibility  for,  involved  in  the  law  of  bailment,  5. 

and  the  degree  of  care  proportioned  to  the  nature  of  the  trust,  5. 

degrees  of  care  recognized  by  the  law,  6,  11. 

and  how  dependent  on  times,  circumstances,  &c.  7-9,  11,  27,  29,  51. 

the  fixed  mode  or  standard  of  diligence,  9. 

gross  negligence,  what  is,  10,  21  -  37. 

ordinary  negligence,  what  is,  10,  47  -  50. 

slight  negligence,  what  is,  10. 

application  of  the  several  degrees  of,  11. 

questions  of  negligence  are  for  the  jury,  7,  11,  16,  22,  27,  51,  184, 
185,  186,  187,  212. 

difference,  between,  and  misfeasance,  12,  269. 

difficulty  of  defining  gross  negligence,  22. 

Quesre,  whether  any  difference  between  negligence  and  gross  negli- 
gence, 23,  268. 

where  the  subject  matter  of  the  trust  is  living  animals,  24,  34,  52, 
214,  394. 

the  doctrine  of  liability  for  ordinary  negligence,  as  applied  to  private 
carriers  for  hire.  45  -  66. 

And  see  Carrier  for  Hire  not  a  Common  Carrier. 

a  carrier's  liability  for  negligence  extends  to  negligence  of  servants, 
47. 

And  see  Agent  —  Delivery  of  Goods. 

of  the  primdfade  evidence  of  negligence,  48-  52,  156  et  seq.  202. 

And  see  Responsibility  of  Common  Carriers. 

as  to  burden  of  proof  in  cases  of,  see  Evidence,  Passenger  Carriers. 

the  rule  as  to  liability  for,  when  both  plaintiff  and  defendant  have 
contributed  to  a  loss,  556-563,  576,  607,  633-643. 

the  rule  as  to  apportionment  of  damages  in  cases  of  injury  to  vessels 

by  collision,  from  mutual  negligence,  see  Collision  of  Vessels. 
NON-DELIVERY  OF  GOODS, 

by  the  carrier,  what  excuses,  327-348. 


792  INDEX. 

NON-DELIVERY  OF  GOODS,  —  Continued. 

carrier  excused  for  non-delivery,  if  the  goods  are  lost  by  "act  of 
God,"  &c.  327. 

where  carrier's  liability  is  limited  by  special  contract,  he  is  excused 
for  every  thing  except  ordinary  negligence,  327. 

entirely  excused,  if  the  goods,  from  necessity,  have  been  thrown 
overboard  to  lighten  a  vessel,  215-219,  328. 

so  if  the  goods  have  perished  from  some  inherent  defect,  328. 

or,  that  the  nature  and  value  of  the  goods  were  not  disclosed,  and  the 
carrier  did  not  bestow  the  care  he  would  have  done,  if  he  had  not 
been  deceived,  328. 

so  if  the  goods  have  been  forfeited  by  the  illegal  act  of  the  shipper, 
329. 

so  if  the  goods  are  delivered,  by  the  order  or  consent  of  the  owner, 
to  another  carrier,  330. 

or  deposited  at  an  intermediate  place  to  await  further  orders,  330. 

or  by  other  directions  to  the  carrier,  331. 

so  an  acceptance  by  the  owner  or  shipper  of  the  goods,  short  of  the 
place  of  destination,  332. 

provided,  the  goods,  beforehand,  have  not  been  injured,  333. 

owner  of  the  goods  accompanying  them,  will  not  excuse  a  non- 
delivery, unless  he  has  the  exclusive  custody,  334. 

quaere,  if  the  goods  are  taken  by  the  real  owner  from  the  carrier,  is  it 
an  excuse  for  non-delivery  to  the  bailor?  335-338. 

carrier  paying  damage  for  the  loss,  is  tantamount  to  a  safe  delivery, 
338. 

the  right  of  the  consignor  of  goods  to  stop  in  transitu,  justifies  a  non- 
delivery to  the  consignee,  339-348. 
NOTICES, 

by  common  carriers  by  land,  intended  to  limit  their  liability,  54. 

the  effect  of,  232-280,  275. 

origin  and  history  of,  222  -  238. 

validity  of,  gradually  established,  233. 

fruitful  source  of  controversy,  234,  253,  255. 

extent  to  which  they  are  properly  admissible,  234-238,  245, 255,  268. 

"  baggage  at  the  risk  of  the  owner,"  does  not  restrict  common  liabil- 
ity, 238  -  245. 

when  there  are  two  valid  notices  given,  carrier  bound  by  the  one  least 
beneficial  to  himself,  246. 

knowledge  of  notice  must  be  brought  home  to  the  owner  of  the  goods 
or  his  agent,  247,  251. 

the  most  usual  evidence  of  this,  248  -251. 

a  notice  of  the  carrier's  terms,  put  up  in  his  office,  248. 

when  such  notice  fails,  248. 


INDEX.  793 

NOTICES,  —  Continued. 

by  advertisements  in  the  public  newspapers,  222,  249. 

by  printed  cards  and  handbills,  249. 

most  unexceptionable  and  effectual  mode  of  giving  notice,  250. 

when  binding  on  the  owner,  binds  his  agents,  251. 

notice  to  the  agent  of  owner,  binds  owner,  254. 

of  a  notice  where  several  are  in  partnership  as  carriers,  252. 

different  forms  of  notice,  253. 

they  must  not  be,  in  terms,  ambiguous,  254. 

act  of  parliament  respecting,  256. 

and  its  general  approval,  256,  257,  277. 

and  general  effect,  257. 

in  absence  of  notice,  persons  sending  goods  not  allowed  fraudulently 

to  conceal  their  value,  &c.  258  -  267. 
And  see  Fraud. 
carrier  answerable  for  negligence,  although  the  terms  of  the  notice 

are  not  complied  with,  267,  268,  275. 
notice  applies  only  to  the  responsibility  of  the  carrier  as  an  insurer, 

267,  268,  275. 
so  the  carrier  is  liable  for  a  loss  by  his  misfeasance,  notwithstanding 

a  notice,  269. 

as  by  delivering  the  goods  to  a  wrong  person,  270. 
And  see  Delivery  of  Goods. 
so  for  want  of  sea-worthiness  of  his  vessel,  274. 
or  defect  of  vehicle,  274. 
See  Contract. 
but  in  such  cases,  the  burthen  of  proof  is  on  the  owner  of  the  goods 

to  show  negligence,  &c.  276. 
waiver  of  notice,  278,  279. 
See  Contract. 
of  the  notice  necessary  to  be  given  of  the  arrival  of  goods  in  vessels, 

to  the  owner  or  consignee,  313-317. 

ONUS  PROBANDI. 

See  Evidence. 

PARTNERSHIP, 

when  persons  act  as  co-partnership  carriers,  all  are  responsible  for  the 

negligence  or  misfeasance  of  one  of  them,  92,  94,  580-590. 
although  the  business  throughout  the  route  is  divided  between  them, 

93,  581-586. 
and  the  vehicle  or  vessel  employed,  may  be  owned  by  one  of  the 

partners  only,  93,  581-586. 

of  a  notice  limiting  responsibility,  by  camera  who  are  partners,  253, 
And  see  Notices. 


794  INDEX. 

PASSENGER  CARRIERS, 

duties,  liabilities,  and  rights  of,  521-610. 

difference  in  respect  to,  between  them  and  public  carriers  of  goods, 

521-524,  568,  570. 

are  bound  to  the  observance  of  the  utmost  care  for  the  safety  of  pas- 
sengers, 523,  568,  570. 

their  obligation  to  receive  passengers,  524-531,  590,  612. 
but  not  allowed  to  carry  slaves,  unless,  &c.  530  c. 
their  right  to  make  all  reasonable  regulations,  530,  et  seq. 
for  what  cause  application  for  passage  may  be  refused,  525,  529,  530, 

609,  612. 

vehicle  must  not  be  over-crowded,  528. 
when  they  cannot  oblige  travellers  in  company,  to  occupy  distinct 

seats,  528. 

their  duty  to  convey  the  entire  route,  531. 
no  passenger  can  be  turned  out,  unless,  &c.  532. 
their  duty  as  to  the  usual  accommodations  on  the  road,  533. 
their  duty  in  respect  to  land-worthiness  of  vehicle,  534  -  540. 
by  stage-coaches,  bound  to  provide  vehicles  that  are  strong,  and  suit- 
able harness,  &c.  534. 

to  examine  vehicle  previous  to  every  journey,  534. 
not  liable  for  defects  in  vehicle  which  cannot  be  discovered  by  thorough 

examination,  535,  536. 
liable  for  mal-construction  of  vehicle,  and  improper  position  of  baggage, 

537. 
railroad  companies  impliedly  warrant  their  road  and  cars  to  be  in  good 

condition,  538. 
implements  on  deck  of  steamboats  must  be  properly  secured,  so  as  not 

to  endanger  passengers,  539. 

are  bound  for  the  skill  and  attention  of  their  servants,  540  -  543. 
drivers  of  stage-coaches  and  engineers  and  switch-tenders  on  railroads, 

must  be  competent,  careful,  and  not  persons  of  intemperate  habits, 

540,  541. 

must  not  start  until  passenger  has  time  to  be  seated,  542. 
their  duties  in  respect  to  rate  of  speed,  543  -  549. 
are  liable  for  the  consequences  of  racing,  545. 
and  rash  speed  on  railroads,  546. 
are  liable  when,  in  consequence  of  their  default,  a  passenger  is 

prompted  to  leap  from  the  vehicle,  547,  548. 
their  duty  as  to  an  observance  of  the  proper  side  of  the  road,  and  as 

to  avoiding  collision,  549-563. 

the  proper  side  of  the  road  in  England  and  in  America,  549. 
the  law  of  the  road  not  the  criterion  of  negligence,  549  -  556 
if  road  or  street  be  very  broad,  552. 


INDEX.  795 

PASSENGER  CARRIERS,—  Continued. 
where  the  drivers  meet  on  the  sudden,  555. 
if  negligence  on  both  sides  be  proved,  neither  party  can  recover, 

556-563,  576,  607. 
unless,  &c.  561,  562. 
And  see  Collision  of  Vessels. 

their  duties  and  liabilities  as  to  foot  passengers,  563-566. 
and,  as  to  property  on  the  way-side,  566,  567. 
burden  of  proof  upon,  to  show  proper  care  has  been  observed,  in  case 

of  injury,  569. 

liability  of,  for  acts  of  drivers  and  servants  and  agents,  572  -  580. 
And  see  Agent. 

when  in  copartnership,  and  what  constitutes  one,  580-590. 
And  see  Partnership. 
of  "consignee"  passengers,  586. 
actions  against,  590  -  609. 
And  see  Actions. 
rights  of,  609. 

as  to  payment  of  fare  to,  110,  111,  525-538,  609. 
PASSENGER  CARRIERS  BY  WATER, 

their  duty  to  receive  passengers,  525,  et  seq.,  612. 

whether  they  carry  from  one  part  of  the  same  country  to  another,  or 

from  one  part  of  a  country  to  a  foreign  country,  612. 
as  to  accommodations,  &c.  during  voyage,  612-629. 
in  case  of  express  contract  in  respect  to  accommodations,  614,  615. 
and  the  custom  of  the  particular  voyage,  616,  617,  618. 
as  to  payment  of  passage  money  pro  raid  itineris,  619. 
whether  the  executor  of  the  captain  may  sue  for  stores  supplied  to  a 

passenger,  620. 

the  duty  of  obedience  of  passengers  to  the  captain's  authority,  621. 
his  duty  in  respect  to  female  passengers,  631,  632. 
how  a  passenger,  guilty  of  ungentlemanly  conduct,  is  to  be  treated, 

622. 
a  passenger  on  board  at  a  time  of  danger,  bound  to  obey  the  captain's 

call,  623. 

when,  in  this  respect,  the  captain  exceeds  his  authority,  624. 
where  a  passenger  is  delayed  in  his  voyage  by  the  negligence  or  mis- 
management of  the  captain,  625. 
Acts  of  Parliament,  and  of  Congress  for  protection,  &c.  of  passengers 

by  sea,  226. 

construction  of  Act  of  Congress  on  the  subject,  627,  628. 
Acts  of  Congress  for  the  safety  of  passengers  on  board  of  steam- 

vessels,  629. 
passenger  boats  on  New  York  canals,  as  regulated  by  the  State,  89, 

630. 


796  INDEX. 

PASSENGER  CARRIERS   BY  WATER,  —  Continued. 

constitutionality  of  state  laws,  in  respect  to  alien  passengers,  631. 
and  the  validity  of  a  state  law,  imposing  a  tax  upon  alien  passengers, 

632. 

in  respect  to  collision  of  vessels,  see  Collision  of  Vessels. 
PERILS  OF  THE  RIVER, 

as  to  the  import  of  the  phrase,  in  bills  of  lading,  168,  226. 
PERILS  OF  THE  SEA, 

what  the  term  denotes  in  bills  of  lading,  and  whether  same  as  "act 

of  God,"  166,  167,  169,  et  seq.  226. 
include  losses  by  pirates,  166. 
and  losses  by  collision  of  two  vessels,  166. 

damage  to  a  vessel  by  the  eating  of  worms,  not  a  peril  of  the  sea,  172. 
PILOT. 

when  goods  on  board  a  vessel  are  lost  or  injured,  by  the  misconduct 
or  negligence  of  a  pilot,  the  master  and  owners  liable,  193,  and 
note. 
owners  of  vessel  running  afoul  of  another,  liable,  though  there  is  a 

pilot  on  board,  667. 
PIRATES, 

losses  by,  within  the  exception  of  "perils  of  the  sea,"  in  bills  of 

lading,  166,201. 
See  Public  Enemy. 
PLEADING. 

See  Actions  —  Declaration. 
POSSESSION, 

of  goods  by  a  carrier,  as  bailee,  creates  in  him  a  special  property,  348. 
and  he  may  sue,  in  his  own  name,  a  person  disturbing  the  possession, 

or  for  injury  to  the  goods,  348. 
but  his  property  in  the  goods  not  absolute,  349. 
and,  therefore,  no  right  to  sell  or  dispose  of  the  goods,  349  -  354. 
master  of  a  ship  may,  however,  hypothecate,  in  case  of  necessity,  354. 
when  usage  of  the  trade  will  authorize  a  sale  by  carrier  in  behalf  of 

his  employer,  104-107,  355. 
And  see  Money. 
common  carrier  allowed  to  retain  the  goods  entrusted  to  him,  till  the 

price  of  carriage  is  paid,  see  Lien. 

as  to,  of  ship,  in  relation  to  claim  for  freight,  see  Char ter-P arty. 
POSTMASTERS, 

rights  and  liabilities  of,  117  -  122. 

postmaster-general  not  liable  for  loss  of  letter  with  money  in  it, 

117-119. 

but  a  postmaster  is  liable  for  ordinary  negligence  in  his  office,  in  not 
safely  transmitting  a  letter,  119. 


INDEX.  797 

POSTMASTERS,  —  Continued. 

though  not  liable  like  a  common  carrier,  119. 

a  deputy  postmaster,  or  clerk  in  the  office,  answerable  in  a  private  suit 
for  misconduct  or  negligence,  120. 

as  wrongfully  detaining  a  letter  an  unreasonable  time,  120. 

not  liable  for  the  act  of  his  assistant,  in  purloining  money,  120. 

See  Mail  Contractor. 
PUBLIC  ENEMY. 

See  Common  Carrier. 

what  is  meant  by,  200. 

pirates  are  included  in  public  enemies,  200. 

RAILROAD  COMPANIES, 

responsible  as  common  carriers  of  goods,  78,  109. 

and  responsible,  as  such,  for  the  baggage  of  passengers,  107-  121. 

And  see  Baggage  —  Responsibility  of  Common  Carriers. 

their  responsibility  as  carriers  of  passengers,  521  -  610. 

delivery  of  tickets  by,  and  the  nature  of  such  tickets,  609. 

And  see  Passenger  Carriers  —  Agent. 

implied  warranty  on  their  part  of  the  good  condition  of  their  rails  and 

cars,  538. 
engineers  and  switch-tenders,  &c.,  must  be  careful,  competent,  and 

not  addicted  to  intemperate  habits,  540,  541. 
when  liable  for  the  consequences  of  too  great  rate  of  speed,  546. 
their  obligation  to  receive  passengers,  and,  under  circumstances,  their 

right  to  reject  them,  524-531. 
See  Passenger  Carriers. 
liable  for  injury  to  property  on  the  way-side,  by  sparks  of  fire  from 

locomotive,  566,  567. 
RESPONSIBILITY  OF  COMMON  CARRIERS. 

answerable  for  all  losses  which  do  not  fall  within  the  excepted  cases 

of  the  "  act  of  God,"  and  the  "  public  enemy,"  46,  67,  148-220. 
the  ground  of  this  responsibility,  publid  policy,  150-  154,  188-200. 
what  is  the  "  act  of  God  ?  "  see  Act  of  God. 
the  responsibility  extends  to  losses  by  fire,  unless  by  lightning,  156  - 

160,  188. 

whether  the  carriage  is  by  land  or  by  water,  156  -  160,  188. 
and  on  the  "  high  seas,"  158. 

no  exception  to  the  rule  as  to  fire,  as  regards  steamboats,  159,  224. 
carrier  liable  for  want  of  forecast  in  anticipating  the  freezing  of  a 

canal  or  a  river,  160. 
for  a  deviation  from  the  regular  journey,  or  voyage,  160,  164,  175- 

179,  183,  226. 
when  a  deviation  is  excusable,  179,  206. 


798  INDEX. 

RESPONSIBILITY  OF  COMMON   CARRIERS,  —  Continued. 

for  neglecting  to  provide  against  the  effect  of  frost,  161. 

for  risking  to  cross  a  dangerous  fording  creek,  162. 

for  neglecting  to  guard  against  rains  and  floods,  163. 

for  carelessness  in  receiving  horses  and  carriages  in  a  ferry-boat,  165. 

for  negligence  in  navigating  rivers,  168. 

when  for  collision  of  vessels,  see  Collision  of  Vessels. 

when  for  collision  of  carriages,  see  Passenger  Carriers. 

for  neglecting  to  guard  against  injury  to  a  vessel  by  rats,  168  -  171. 

for  loss  of  cargo,  in  consequence  of  the  internal  defect  of  the  vessel's 
rudder,  171,  192. 

for  damage  in  consequence  of  injury  to  a  vessel  by  worms,  172. 

for  unseaworthiness,  generally,  173. 

for  shooting  a  bridge,  at  an  improper  time,  174. 

for  rashly  encountering  any  mischief,  174  -  179. 

not  for  injury  in  consequence  of  the  settling  of  a  vessel  on  a  hard  sub- 
stance, on  the  ebbing  of  the  tide,  if  due  care  is  exercised,  180. 

if  the  injury,  in  such  case,  is  connected  with  a  want  of  proper  care, 
the  carrier  is  liable,  181. 

when  for  running  a  vessel  against  a  rock  or  other  obstruction,  in  a 
river,  182,  183,  185. 

the  jury,  in  such  cases,  to  determine  whether  the  fault  of  the  master, 
184. 

for  neglect  in  case  of  the  stranding  of  a  vessel  by  the  act  of  God,  in 
saving  and  forwarding  the  goods  on  board,  187. 

for  all  losses  by  the  act  of  God,  which  is  secondary  to  the  intervention 
of  a  third  person,  188  -  200. 

as  for  goods  stolen,  or  embezzled,  189,  190. 

for  goods  lost  by  forcible  robbery,  191. 
'   or  seizure  of  the  vessel,  193. 

for  using  the  machinery  of  a  third  person,  in  hoisting  the  goods  from 
a  vessel,  which  breaks,  194. 

for  running  a  vessel  against  the  floating  mast  of  another  vessel,  suf- 
fered to  float  in  the  water  in  a  river,  195. 

for  running  a  vessel  against  the  anchor  of  another,  though  no  buoy 
out  to  mark  the  place,  196. 

for  stranding  a  vessel  by  mistaking  a  light  on  the  shore  for  a  beacon 
light,  197. 

for  the  loss  of  a  vessel  occasioned  by  the  shifting  of  a  buoy,  198. 

Quare,  if  for  the  going  ashore  of  a  vessel,  in  consequence  of  the  im- 
pressment of  men  sent  ashore  to  make  fast  a  new  line,  &c.  ?  199. 

Onus  probandi  on  the  carrier  to  show  there  has  been  no  default  on  his 
part,  202. 


INDEX.  799 

RESPONSIBILITY  OF  COMMON  CARRIERS,  —  Continued. 

Qiuere,  supposing  a  loss  connected  with  the  carrier's  negligence,  &c. 

is  he  excused  by  showing  that  the  same  loss  must  have  accrued,  if 

he  had  in  no  respect  been  in  default  ?  203  -  209. 
their  responsibility  in  reference  to  the  thing  bailed,  99  -  123, 209  -  220. 
And  see  Money,  Baggage,  Postmasters. 
in  respect  to  animals,  see  Slaves  —  Living  Animals. 
responsibility  does  not  extend  to  the  natural  deterioration  or  decay  of 

goods,  210. 

nor  to  the  diminution  or  evaporation  of  liquids,  211. 
but  extends  to  the  mode  of  packing  and  stowage,  212. 
and  to  the  observance  as  to  the  directions  of  how  the  goods  are  to  be 

carried,  212. 
and  to  throwing  goods  overboard,  without  necessity,  from  the  deck  of 

a  vessel,  215  -  219. 
and  to  the  putting  of  the  goods  on  deck,  without  the  consent  of  the 

merchant,  218. 
And  see  Jettison. 

SEAWORTHINESS, 

common  carriers  by  water,  answerable  for  want  of,  173. 

Quare,  if  a  vessel  unseaworthy  is  lost,  is  the  carrier  excused,  by  show- 
ing that  she  must  have  been  lost,  if  seaworthy  ?  200  -  209. 
SHIP-OWNERS. 

See  Seaworthiness. 

owners  and  masters  of  vessels  employed  in  transporting  goods  for  hire, 
liable  as  common  carriers,  87-91. 

See  Steamboats. 

so  long  as  they  retain  the  employment  of  public  carriers,  89. 

or,  unless  the  vessel  is  chartered,  89. 

And  see  Charter-Party. 

how  far  they  have  been  exempted  from  liability  by  statute,  90,  223. 

by  special  contract,  see  Contract. 

owners  of  freighting  ships  have  a  lien  for  the  price  of  transportation 
on  the  cargo,  369. 

And  see  Lien. 
SLAVES, 

to  the  carriage  of  them,  the  law  of  responsibility  of  common  carriers 
does  not  apply,  122. 

but  if  their  passage  is  paid,  the  carrier  is  liable  for  want  of  proper 
care,  122. 

run-away,  passenger  carriers  not  allowed  to  take,  530  c. 

if  not  paid,  liable  only  for  gross  negligence,  122. 

See  Passenger  Carriers. 
K 


INDEX. 

SPECIAL  ACCEPTANCE, 

of  goods  by  a  common  carrier,  220  -  280. 
And  see  Contract  —  Notices. 
SPECIAL  CONTRACT. 

See  Contract  —  Notices. 
STAGE  COACHES, 

proprietors  of,  common  carriers,  77,  109. 

unless  they  engage  only  for  the  conveyance  of  passengers,  77. 

or,  unless  the  goods,  &c.  are  specially  intrusted  with  the  driver,  77. 

driver  of,  carrying  parcels  on  his  own  account,  liable  only  to  the 

extent  of  a  paid  private  carrier,  77. 
proprietors  of,  responsible  as  common  carriers  for  loss  of  passenger's 

baggage,  107-  121. 

And  see  Responsibility  of  Common  Camera — Baggage. 
their  duties  and  liabilities  in  respect  to  passengers,  see  Passenger 

Carriers. 
STATUTE, 

the  liability  of  common  carriers  by  water  regulated  and  limited  by,  90, 

223. 

also  that  of  carriers  by  land,  256,  257,  277. 
of  Parliament,  in  respect  to  passenger  ships,  626. 
of  the  United  States,  in  respect  to  same,  626-629. 
also  in  respect  to  steam- vessels,  629. 
of  a  State  in  respect  to  alien  passengers,  see  Constitution. 
of  New  York,  relative  to  passage  boats  on  canals,  89,  630,  637. 
STEAMBOATS, 

owners  and  masters  of,  are  common  carriers,  83,  109,  157-  160,  189. 

unless  employed  solely  in  the  transportation  of  passengers,  84. 

but  their  employment,  as  common  carriers,  may  be  limited  to  particular 

kinds  of  property,  84. 

and  the  master  may  be  made  the  special  bailee,  85,  102,  103. 
when  employed  in  towing,  not  liable  as  common  carriers,  but  only  for 

the  want  of  ordinary  care,  86,  668. 
See  Ship-owners. 
owners  of,  liable  as  common  carriers  for  loss  of  passenger's  baggage, 

107-121. 
And  see  Baggage. 

responsible  for  losses  by  fire,  157  -  160. 
See  Responsibility  of  Common  Carriers. 
their  liability  as  carriers  of  passengers,  521-610. 
what  is  on  deck  must  be  properly  secured,  for  safety  of  passengers, 

539. 

See  Passenger  Carriers  by  Water. 
owners  of,  are  liable  for  injury  to  property  on  the  shore,  by  sparks  of 

fire,  566,  567. 


INDEX.  801 

STEAMBOATS,—  Continued. 

laws  of  Congress  for  the  security  of  passengers  on  board  steam-vessels, 

629. 
obligation  of  masters  of  steam-vessels  to  give  way  to  sailing  vessels, 

to  avoid  a  collision,  656-660,  662,  663. 
STOPPAGE  IN  TRANSITU, 

right  of,  in  consignor  of  goods,  as  excusing  a  non-delivery  of  them 
by  the  carrier,  to  the  consignee,  339-348. 

TEAMSTERS. 

See  Wagoners. 
TICKETS, 

in  the  nature  of  a  special  contract  as  to  liability  of  carriers  of  goods, 

250. 

and  of  carriers  of  passengers,  600. 
TRESPASS, 

action  of,  may  be  maintained  for  injury  sustained  by  collision  of  car- 
riages, 602. 

and  by  a  foot  passeenger  for  being  driven  against,  602. 
but  case  must  be  adopted  if  defendant's  servant  did  the  injury,  603, 

605,  607. 
whether  there  is  an  election  to  bring  trespass  on  case,  where  the 

injury  is  both  direct  and  consequential,  606. 
whether  the  trespass  is  committed  by  principal  or  agent,  605. 
TRINITY  HOUSE, 

regulations  of,  for  avoiding  collision  of  vessels,  considered  and  applied, 

652-664. 
TROVER, 

in  action  of,  against  carriers,  the  rule  as  to  burden  of  proof,  38,  63. 

And  see  Evidence  —  Actions. 

to  maintain  action  of,  a  conversion  necessary,  431. 

what  is  a  conversion  by  a  carrier,  431. 

delivery  of  the  goods  to  a  wrong  person,  a  conversion,  452. 

when  demand  and  refusal  necessary  to  render  the  conversion  complete, 

433. 

TRUCKMEN. 
See  Carmen. 

UNSEAWORTHINESS. 

See  Seaworthiness. 
USAGE  OF  TRADE, 

as  affecting  the  rights  and  liabilities  of  carriers,  must  be  uniform, 
certain,  and  well  established,  106,  229,  230,  301,  355,  390,  393, 
396,  612. 


802  INDEX. 

USAGE   OF   TRADE,  —  Continued. 
And  see  Sill  of  Lading. 
when  a  usage  for  vessels  to  stop  at  intermediate  ports,  will  excuse  a 

deviation,  179. 
usage  may  render  the  landing  of  goods  on  a  wharf  a  good  delivery, 

301. 

And  see  Delivery  of  Goods. 
as  establishing  the  right  of  lien,  357,  358. 
- 
WAGONERS, 

and  teamsters,  liable  as  common  carriers,  76,  109. 
except  when  the  goods  &c.  are  specially  intrusted  to  the  driver,  76. 
WAREHOUSEMEN, 

like  private  carriers  for  hire,  bound  to  only  ordinary  diligence,  45,  66, 

69,  note,  75. 

as  to  their  right  of  lien,  66. 

may  be  both  warehousemen  and  common  carriers,  75,  301-305. 
when  depositing  goods  at  the  carrier's  warehouse,  at  the  end  of  the 
transit, -determines  his  liability  as  common  carrier,  see  Delivery  of 
Goods. 
WAY-BILL. 

See  Baggage. 
WHARFINGER, 

liability  of,  like  that  of  a  private  carrier  for  hire,  66. 
as  to  right  of  lien,  66. 
See  Delivery  of  Goods. 


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